GIFT  OF 

SEELEY  W.  MUDD 

and 

GEORGE  I.  COCHR.VN     MEYER  ELSASSER 

DR.  JOHN  R.  HAYNES    WILLIAM  L.  HONNOLD 

JAMES  R.  MARTIN         MRS.  JOSEPH  F.SARTORl 

to  the 

UNIVERSITY  OF  CALIFORNIA 

SOUTHERN  BRANCH 


?=P^ 


This  book  is  DUE  on  the  last  date  stamped  below 


University  of  California 

At  Los  Angeles 
The  Library 

Form  L  I 

\\^ 


THE   EARLY   HISTORY 


OF 


LAND-HOLDING  AMONG  THE  GERMANS. 


BY 


DENMAN   W.   ROSS,   Pn.D. 


L'idee  formulee  par  les  faita  represente  la  science. 

Claude  Bernard. 


BOSTON: 

SOULE    AND     BUGBEE. 

1883. 


93390 


Copyright,  1SS3, 
By   Denman   W.  Eoss. 


University  Press: 
John  Wilson  and  Son,  Cambridge. 


.>i 


PREFACE. 


This  volume  is  the  result  of  an  investigation  into  the 
early  history  of  land-holding  among  the  Germans.  The 
investigation  was  begun  in  the  year  1875,  and  it  has 
been  continued,  with  occasional  interruptions,  since 
then. 

The  collections  of  early  records  were,  most  of  them, 
read  through.  Passages  bearing  upon  the  subject  of 
the  investigation  were  noted.  They  were  then  care- 
fully classified ;  passages  establishing  certain  ficts  be- 
i'q  ing  grouped  together.  A  general  theory  was  then 
'  '  formed,  to  bring  the  facts  thus  collected  into  a  natural 
order  and  relationship.  This  theory  is  now  offered  to 
readers  and  students  for  their  consideration. 

In  order  to  reach  a  just  judgment  of  the  theory, 
three  inquiries  should  be  made :  —  1.  Are  the  passages 
of  the  records,  which  are  described  or  referred  to,  cor- 
rectly interpreted  ?  2.  Have  any  passages  in  the 
records  been  overlooked,  which  are  inconsistent  with 
the  theory  offered  ?  3.  Are  the  flicts  which  have  been 
ascertained  well  arranged  and  fully  described  ? 


IV  PREFACE, 

Althougli  much  labor  has  been  spent,  during  a  long 
period  of  time,  in  order  to  reach  a  truthful,  consistent, 
and  lucid  statement,  the  result  is  still  unsatisfactory 
to  the  writer,  in  many  respects.  It  will  be  unsatisfac- 
tory to  the  reader  also,  without  doubt.  An  entirely 
satisfactory  statement  still  remains  to  be  made.  Per- 
haps it  may  never  be  made.  The  records  are  in 
many  cases  inconsistent;  and  in  regard  to  certain 
points  we  have  no  records  whatever;  nor  is  there 
much  chance  of  any  being  discovered. 

Nevertheless,  we  believe  that  it  will  always  be  pos- 
sible to  advance  in  the  knowledge  and  understanding  of 
our  subject.  Perhaps  the  time  may  come  when  we  shall 
no  longer  be  able  to  gather  new  facts,  though  such 
a  time  must  still  be  far  off;  but  the  time  will  never 
come  when  we  can  make  an  exhaustive  general  state- 
ment, which  will  involve  no  error  of  any  kind.  It  will 
always  be  possible  to  make  a  more  simple,  a  more  lucid, 
a  more  truthful  statement.  It  must  be  remembered 
that  we  advance  in  science  not  so  much  by  presenting 
new  views  as  by  correcting  old  ones.  In  other  words, 
we  advance  not  so  much  by  establishing  our  theories 
as  by  modifying  them.  Absolute  truth  is  far  away  from 
us,  and  unattainable.  The  most  we  can  do  is  to  ap- 
proximate towards  it ;  and  we  do  this  by  giving  up  the 
statement  of  to-day  for  another,  which  will  bring  facts 
a  little  more  nearly  into  their  true  and  natural  relation- 
ship.    We  advance  in  this  way  very  slowly,  but  surely; 


PREFACE.  V 

having  always  something  new  to  say  involving  the  best 
of  what  has  been  said. 

Consistently  with  this  idea,  we  hope,  after  some 
years,  to  rewrite  this  book,  or  to  write  another  book 
upon  the  same  subject;  to  exclude  all  that  has  been 
said  amiss,  to  include  all  that  has  been  rightly  said, 
and  many  things  besides  which  ought  to  have  been 
said.  Instead  of  creating  many  things,  we  will  perfect 
one  if  we  can.  As  Balzac  tells  us  in  one  of  his  letters, 
"  II  faut  refaire,  recorriger,  mettre  tout  a  I'etat  monu- 
mental." 

Cambridge,  June,  1883. 


CONTENTS. 


Theory 1-109 

Sources  of  Information 111-122 

Notes  and  References 122-252 

Literature  of  the  Subject 252-264 

Index 205-274 


THE    EARLY   HISTORY 

OF 

LAND-HOLDING  AMONG  THE  GERMANS. 


The  life  of  the  early  Germans,  considered  from  Pastoral  life 
an  economic  f)oii^t  of  view,  was  pastoral  rather 
than  ao;ricultural.  Ao;ricultm^e  was  resorted  to 
more  or  less  ;  at  first  from  time  to  time,  and  after- 
wards regularly ;  but  the  wealth  of  the  people, 
and  their  chief  means  of  subsistence,  consisted  of 
live-stock,  and  the  land  was  used,  most  of  it,  as 
pasture-ground  for  flocks  and  herds  (^). 

The   freemen   settled   neither    in   villages    nor  isolated 
in  towns,    but   apart    from   one    another   in   iso- 
lated farmsteads,  —  Eimelhofe,   the   Germans   call 
them  (^). 

The  extent  of  pasture  ground  which  the  free-  Pasture 
man  occupied  round  about  his  farmstead  was'' 
determined  by  the  number  of  his  flocks  and 
herds.  As  among  the  Latins,  the  pccuniosiis  was 
also  locupks  (^).  If  a  man  owned  much  stock,  he 
occupied  a  great  deal  of  land.  If  he  owned  a 
little  stock,  a  small  amount  of  land  was  enough 
for  him.  There  was  plenty  of  land ;  so  every 
man  occupied  as  much  as  he  wanted.     The    ani- 


2  EARLY  HISTORY  OF  LAND-HOLDING 

mals  grazed  in  herds,  under  the  care  of  herdsmen, 
who  drove  them  out  from  the  farmstead  and 
brought  them  back  again  (*). 

Grass  land.  While  most  of  the  land  was  occupied  as  pasture- 
ground,  a  part  of  it  had  to  be  reserved  for  its 
grass  crop.  The  climate  of  Germany  is  cold.  Snow 
lies  upon  the  ground,  in  most  places,  during  many 
months  of  the  year.  At  that  time  there  is  no 
green  herbage  anywhere.  It  follows  that,  if  flocks 
and  herds  are  to  be  maintained,  grass  must  be 
cut  and  stored  away  for  winter.  Every  man  re- 
quired, therefore,  besides  his  pasture  ground,  a 
certain  extent  of  grass  land.  The  amount  of 
grass  land  which  the  freeman  occupied  was  de- 
termined by  the  number  of  animals  he  had  to 
maintain  throuQ-h  the  winter. 

Agriculture.  Although  the  early  life  of  the  Germans  was 
pastoral  rather  than  agricultural,  agriculture  was 
resorted  to  more  or  less.  In  Ctcsar's  time,  among 
the  Suevi,  it  was  resorted  to  by  everyljody  in 
turns.  While  some  of  the  people  went  to  war, 
the  rest  engaged  in  agriculture.  Thus,  we  are 
told,  neither  war  nor  agriculture  was  neglected. 
This  seems  to  have  been  the  custom,  also,  in  the 
time  of  Tacitus ;  not  particularly  among  the  Suevi, 
but  among  the  Germans  generally  (^). 

Slaves  as  The  cultivators  were,   as   a   rule,  slaves.     The 

freemen  seldom  engaged  in  agricultural  labor, 
unless  thoy  were  obliged  to  do  so.  They  spent 
most  of  their  time,  when  not  at  war,  in  hunting ; 


AMONG  THE  GERMANS.  3 

tlie  rest  in  idleness,  eating,  drinking,  or  sleeping, 
at  entertainments  or  assemblies  (°).  In  early  soci- 
ety, people  do  not  willingly  resort  to  agriculture, 
until  they  have  servants  whom  they  can  oblige 
to  do  the  work  for  them.  The  work  is  too  hard, 
and  takes  too  much  time.  Stock-raising  affords  an 
easier  means  of  subsistence.  The  transition  from 
the  pastoral  to  the  agricultural  life  has  almost 
always  been  effected  by  means  of  slavery.  This 
was  certainly  the  case  among  the  Germans.  Who- 
ever reads  through  the  early  laws,  formulae,  and 
documents,  will  be  convinced  of  this  C). 

At  the  same  time  a  class  of  dependent  freemen  Dependent 
or  clients  was  coming  into  existence  almost  ev- 
erywhere, —  a  sort  of  plebeian  order,  interme- 
diate between  the  class  of  independent  freemen 
and  the  class  of  slaves.  It  consisted  of  men  livino; 
under  patronage  or  over-lordship.  It  consisted  of 
men  who,  having  been  freed  from  bondage,  were 
unable  to  escape  from  dependence,  because  they 
had  no  arms,  no  stock,  no  land ;  of  men  who, 
having  been  separated  from  their  kindred,  and 
the  protection  which  the  family  or  clan  rela- 
tionship afforded,  w^ere  afraid  to  live  alone,  to 
hold  their  own  against  the  world  ;  or  of  men  who 
thought  that  they  were  more  prosperous  as  de- 
pendants than  as  free-lords.  It  was  a  fortuitous 
assemblage  of  persons  of  divers  descent,  nation- 
ality, race.  Being  freemen,  they  could  leave 
their   respective    patrons    and    lords   when    they 


4  EARLY  HISTORY  OF  LAND-HOLDING 

pleased  ;  but  before  doing  so  they  were  obliged 
to  pay  back  all  that  they  had  received,  or  an 
equivalent  thereof.  This  they  were  seldom  able 
Dependants  to  do.  So,  although  tlicy  Were  politically  free, 
tree,  eco-  they  Were  economically  unfree.  They  were  then 
uufiee!  ^  debtors,  bound  in  servitude  to  their  respective 
Dependent    lords  and  patrons.    In  this  position  they  were  often 

freemen  as,,.-, 

cultivators,  obliged  to  take  lots  oi  land,  to  cultivate  these 
lots  with  their  own  hands,  and  to  pay  to  their 
lords  a  part  of  the  produce  of  their  labor.  Their 
condition  was  often  little  better  than  that  of 
the  slaves.  It  appears  to  have  grown  worse 
and  worse  as  time  went  on ;  until,  at  last,  the 
two  classes,  the  class  of  slaves  and  the  class 
of  laboring  freemen,  were  very  nearly  merged 
together.     We   may    describe   them    together,   as 

The  class  of  One  class,  —  the  class  of  serfs.  It  comprised  the 
bulk  of  the  population  of  Western  Eurojoe  during 
the  early  and  middle  ages  (®). 

The  amount  of  land  which  the  freeman  occu- 
pied for  tillage  depended  upon  the  number  of 
cultivators,  or  serfs,  he  had  at  his  farmstead,  or 
in   houses   of    their   own   near   by.     As    Tacitus 

Theafjri,     tells   US,    arable    lots    were    occupied    according 

or  3.riljlG 

lots.  to  the  number  of  cultivators,  —  a(/n  pro  nimiero 

One  lot  as-    ciiUoriim  ....  occupantur.     A  certain   measure    of 

signed  to  .  i  •      i 

eachcuiti-  land,  what  Tacitus  calls  an  ager^  —  what  is  known 
in  later  times  as  a  liida^  mansiis,  huba,  or  coloiiica,  — 
was  assigned  to  each  cultivator.  Two  agri  were 
assigned  to  two  cultivators ;  ten  agn  to  ten  culti- 


AMONG  THE   GERMANS.  5 

vators ;  twenty  agri  to   twenty   cultivators ;  and 
so  on  (^). 

AVhen  the  agri  marked  off  were  equally  fertile,  The  agri 

,  T    i    •!      J     1  1  1   •  distributed 

they  were  distributed  among  the  cultivators ;  one  by  lot. 
to  each  man,  usually  by  lot :  but  it  seldom 
happened  that  the  agri  were  equally  fertile.  The 
land  upon  which  they  had  been  marked  off 
was  apt  to  be  more  or  less  diversified  in  sur- 
face, and  the  soil  was  better  in  some  places  than 
in  others. 

The  agri  were  then  of  unequal  value,  and  quar-  Thea^nnot 

-  .         .  1,1  A  1    always  of 

rels  were  apt  to  arise  m  regard  to  them.     As  each  equal  value. 

of  the  cultivators  paid  a  portion  of  the  produce 

of  his  lot  to  his  lord,  and  all  those  who  were  of 

the    same   rank  or  consideration   paid    the  same 

portion,  as  a  rule  ("^),  inequalities  between   the 

lots  were  a  just  cause  of  dispute,  and  they  had 

to   be  corrected. 

The  only  way  in  which  the  lots  could  be  equal-  The  agH 
ized    in   value,  without    being   made   unequal   in  tributed  in 
extent,  was  by  a  redistribution  in  sections.     The 
land   upon   which   the    lots  had  been  marked  o£E 
was,  therefore,  divided  into  sections,  —  what  Ta- 
citus  calls   spatia   camporum  (^^),  —  approximately  The  ,<;;)«//« 
rectangular,    we    may    suppose,    and,   so    far    as 
possible,  equally  fertile  in  every  part.     Each  sec- 
tion  was    then  divided    into    as  many  shares   as 
there  were  lot-holders  in  the  land,  and  each  man 
received   one    share   of    each   section,   as    many 
shares   as   there  were  sections.     Thus  an  almost 


6  EARLY  HISTORY  OF  LAXD-HOLDING 

perfect  equality  was  secured.  The  original  lots, 
being  intermixed,  were  obliterated. 
Acre  lots.  There  was  still  another  way  in  which  the 
original  lots  were  distributed.  The  cultivators 
met  together  and  marked  off  on  the  ground  a 
number  of  acres  (small  agri),  one  for  each  man. 
These  were  then  distributed  by  lot  and  ploughed 
up,  each  man  ploughing  his  own  acre.  Then, 
presumably  the  next  day,  for  the  acre  was 
The  morgcn,  regarded  and  described  as  a  day's  work  [morgen 
ni  the  German,  lunialis  m  the  Latm)  [^^),  another 
set  of  acres  was  marked  off,  distributed,  and 
ploughed  up  ;  then  another,  and  another ;  and  so 
on,  until  the  original  lots  were  all  redistributed 
in  acres.  These  lots,  being  intermixed,  were 
Intermixed  obliterated.  Their  boundaries  were  lost.  Nullus 
ccrtls  tcrminis,  scd  iiigera  iacent  ad  iugerihus ;  quia 
iugera  altrinseciis  copulata  adiacent ;  singidls  iuge- 
ribus  mixiim  in  commiini  riire  hue  illucque  disper- 
sis.  These  are  some  of  the  phrases  by  which 
this  arranscement  of  lands  is  described  in  the 
records  Q"^). 
Existing  Vcstigcs  of  arable  lots  redistributed  in  this  way 

anci^Tin-  havc  bccn  found  in  almost  every  country  occupied 
hoWiugi  I^J  the  Germans.  The  traveller  in  England,  in 
France,  or  in  Germany,  cannot  fail  to  notice  that 
the  arable  land  is  still  quite  commonly  cut  up  in 
very  small  pieces,  usually  narrow  strips ;  and  if 
he  makes  inquiry  regarding  the  distribution  of 
property,  he  will  find  that  it  is,  and  has  been, 


AMONG  THE  GERMANS.  7 

from  the  remotest  time,  scattered  and  intermixed 
in  the  manner  described.  The  sections  {spatia)  in 
which  the  lots  were  originally  redistributed  often 
remain  ('*). 

When  an  acre  lot  extended  along  a  slope  of  Terraced 
ground,  the  ploughman  j^loughed  one  furrow  after 
another  down  the  slope.  In  so  doing  he  brought 
earth  from  the  upper  side  of  the  lot  to  the  lower 
side,  so  as  to  level  it.  After  several  ploughings 
the  acre  had  the  appearance  of  a  terraced  border. 
If  there  were  several  acres  side  by  side,  there  was 
a  series  of  terraces  down  the  slope.  Such  ter- 
raced acres  may  be  seen  in  many  places  in  Eng- 
land and  Germany  (^^).  Some  narrow,  far-stretch- 
ing terraces  may  be  seen  at  Deisenhofen,  between 
Munich  and  Holzkirchen.  They  are  crossed  by  a  The  Rava- 
Roman  road,  which  must,  it  is  said,  have  been  acker. 
built  before  A.  d.  201.  They  differ,  however,  in 
many  respects,  from  those  we  are  here  describ- 
ing  (i«). 

When  the  same  lots  —  agri  pro  mimcro  culi o?imi  ^hmmg 
occupati — had  been  repeatedly  cultivated,  the  soil  lie  fields. 
became  exhausted,  and  new  lots  had  to  be  sub- 
stituted for  them.  From  time  to  time  new  lots 
were  cultivated,  and  the  old  ones  vrere  allowed  to 
lie  fallow.  This  fact  is  recorded  by  Tacitus  in 
the  words,  arva  ]>cr  annos  mntant  d  mpcrcst  arjcr. 
That  the  arable  lots  were  sliiftcd  about  over  the 
meadow  and  pasture  lands  is  known,  not  only  from 
this  statement  of  Tacitus,  but  from  the  testimony 


8  EARLY  HISTORY  OF  LAND-HOLDIXG 

of  later  records.  For  example,  in  one  of  the  St. 
Gall  documents,  a  certain  inheritance  is  described 
as  embracing  two  tenements  {colonicas),  with  the 
arable  lots  cultivated  in  successive  years  [analies 
ten-is),  besides  meadow,  pasture,  and  other  lands 
(pmfis, ^JCtsciiis,  etc.)  (^'). 
The  field-  Tliis  is  the  field-grass  system  of  tillage,  —  Feld- 
tem.  graswirthschaft,  the   Germans  call   it.     There  was, 

in  the  first  place,  an  indefinite  tract  of  meadow 
and  pasture  land.      Upon    this  land   arable   lots 
were  marked  off,   ten,  fifteen,   twenty,  more    or 
,  not  so  many,  according  to  the  number  of  cultiva- 
tors.    Then   these  lots  were   shifted  about  from 
one   position   to    another;    every  other   year,   or 
from  time  to  time  in  the  course  of  years, — ^;^r 
annos,  as  Tacitus  says. 
Ploughs  and      Each  cultivator  received  from  his  lord  a  plough, 
lauds.         besides  a  yoke  of  oxen ;    hence    the  arable  lots 
were  called  j^lough-lands,  —  terrae  aratrormn  or  car- 
rucatae  (^'^).    They  were  called  plough-lands  whether 
they  were  intermixed  or  not.     Each  of  the  culti- 
vators ploughed  his  land  himself,  with  the  aid  of 
other  members  of  his  family;    except  in  certain 
Co-operative  cascs,  wlicu   the   ploughing  was   done    co-opera- 
pougung.    ^-^gi^^      jj-^  g^^|-^  cases  the  cultivators  were  not 

all  provided  with  ploughs.  One  plough  was  as- 
signed to  several  cultivators.  Then  each  man 
brought  out  his  yoke  of  oxen,  and  all  the  yokes 
of  oxen  were  hitched  to  the  one  plough,  and  the 
lots  of  the  associate  cultivators  were  ploughed  in 


AMONG  THE   GERMANS.  9 

turn  (") ;    unless    the  plough  was   used   in    turn, 
which  plan  may  have  been  preferred. 

In  the  early  time,  and  in  some  places  long  The  grass 
afterwards,  the  meadow  land  was  not  separated 
at  all  from  the  pasture  land.  We  suppose,  there- 
fore, that  the  free-lord,  or  his  people,  cut  the  grass 
in  certain  places,  here  or  there,  and  the  herdsmen 
kept  the  animals  away  from  these  places  until 
it  had  been  cut  ("°).     "When   there  was  plenty  of  Enjoyment 

^  ad  libitum. 

grass,  every  man  cut  as  much  as  he  wanted ;  but 
when  the  amount  of  grass  was  limited,  an  allow-  Enjoyment 
ance  was  made  to  each  man.  He  was  allowed  to 
cut  and  carry  off  one,  two,  or  more  loads.  Grass 
land  Avas  regularly  estimated,  according  to  the 
number  of  loads  of  hay  (carradae  feni)  it  was  capa- 
ble of  producing  (^^).     At  a  later  time,  the  grass  Grass  land 

divided  into 

land  was  divided  into  lots,  one  lot  for  each  tenant,  lots. 
Then  most  of  what  has  been  said  regarding  the 
arable  land  may  be  said  of  the  grass  land.  When 
the  grass  produced  upon  the  various  lots  was 
nearly  equal  in  quantity  and  quality,  one  lot 
was  assigned  to  each  tenant ;  but  when  the  lots 
were  of  unequal  value,  they  were  redistributed 
by  sections,  and  so  scattered  and  intermixed  ("). 
AVhen  the  lots  of  grass  land  were  permanently  The  rotation 
located,  they  were  often  taken  by  the  cultiva- 
tors in  rotation;  the  holder  of  lot  1,  one  year, 
taking  lot  2  the  next;  the  holder  of  lot  2  tak- 
ing lot  3 ;  and  so  on.  Sometimes,  when  the 
lots    were    redistributed    in    sections,    the    shares 


10  EARLY  HISTORY  OF  LAND-HOLDING 

in  each   section  were  taken  in   rotation,  in   the 
same  way  (^). 
Arable  lots        So,  in  Certain  cases,  when  the  arable  lots  had 
been  located  permanently,  when   the   field  grass 
sj^stem    had    been    given  up,   and    a   system   of 
permanent  fields  had  taken  its  place,  the  shares 
were  taken  in  rotation  (-*).     The  rotation  system 
was  preferred  to   redistributions   by   lot,  because 
of  its  perfect  justice  and  equality.     It  was  a  com- 
promise which    the   inequality  of  the  lots  made 
necessary. 
The  pasture       In  regard  to  the  pasture  land,  so  long  as  there 
was  plenty  of   it,  the  enjoyment  was  ad  libitum. 
Enjoyment   Evcry   man  turned   out   as  many  animals  as  he 
regulated ;    had  :  but  wlicn   the  pasture  ground  was  limited, 
afterwards    cacli  man  w^as  allow^ed  to  turn  out  a  certain  num- 
ber of  animals ;  five  or  ten,  more  or  not  so  many. 
Pasture  lands  were  quite  regularly  estimated  ac- 
cording to  the  number  of  animals,  of   one    kind 
or  another,  that  could  be  maintained  upon  them. 
We  have  pastures  for  fifty,  ,a  hundred,  more   or 
not   so    many,    cows,  or    sheep,  or   swine,  to   be 
shared  between  the  free-lord  and  his  tenants  (^^). 
The  forest         The  cnjoymcut  of  the  forest  land  was  usually 
Enjoyment   unrcgulatcd  in  the   early  time  of  which  we  are 

unregu  a  e  .  gpgj^]^Jj-,g_       ^\^q    fj.gg  ]qj.^    alloWcd     llis     tcuauts    tO 

cut  all  the  wood  that  they  wanted  for  building 
purposes,  for  the  erection  of  enclosures,  or  for 
fuel,  and  he  had  all  that  he  wanted  for  himself 
besides  (^^). 


AMONG  THE  GERMANS.  11 

Sometimes  the  free-lords  took  lots  of  the  arable  Domain  lots. 
land  with  their  tenants.     Then  we  have  domain 
lots  {huhue  indominicatae)  as  distinguished  from  lots 
in    tenure  ('').     The    free-lords  seldom  cultivated 
these  domain  lots  however.     They  obliged  their  The  domain 
tenants  to  do  this  for  them.     Hence  the  agricul-cuitivatudby 

,  .  T  •        1        1  1  •    1  the  tenants. 

tural  services  upon  domain  land  which  were 
exacted  almost  everywhere  during  the  early  and 
middle  ages. 

The    ploughing    upon    the    domain    land    was  Agricultural 

SGrvic(?s  on 

done  by  the  tenants.  They  sowed  the  seed  in  it,  domain  land. 
gathered  the  harvest  from  it,  and  stored  this  in 
the  lord's  barns.  They  cut  grass  for  the  lord, 
and  stored  it.  They  cut  wood  in  the  forest,  and 
brouo-lit  it  to  where  it  was  needed  for  buildinc;  or 
for  fuel.  They  went  on  errands,  and  performed 
other  services,  as  ordered :  all  this  in  addition 
to  cultivating  their  own  lands  and  paying  to 
the  lord  a  portion  of  the  produce  thereof  These 
manifold  dues  and  services  were  -at  first  imposed  Dues  and 

sci*viccs  tk 

by  the  lord  according  to  his  will ;  but  he  always  uiated  by 
found  it  difficult  to  increase  them  afterwards. 
The  tenants  were  constantly  referring  to  pre- 
cedent, and  were  discontented,  and  sometimes 
riotous,  if  it  was  not  adhered  to.  The  precedent 
worked  in  both  ways,  however ;  for  when  the 
tenant  called  for  a  reduction  of  his  dues  and 
services,  the  lord  referred  to  the  precedent,  and 
usually  persisted  in  adhering  to  it.  The  dues 
and     services    became,    in    this    way,   fixed    by 


12  EARLY   HISTORY   OF  LAND-HOLDINa 

precedent,  in  other  words  by  custom.  There 
were  different  customs,  of  course,  in  different 
places,  according  to  different  precedents  referred 
to  (2«). 
ihemansi  When  the  tenants  of  the  houses  and  lots  of 
ft^y/^"  hand  which  we  have  been  describing  (the  mansi 
cum  huhis)  died,  and  were  not  replaced  by  others, 
we  have  empty  houses  and  unoccupied  lots  [mansi 
ahsi  and  huhae  ahsae).  The  freeman,  in  describing 
his  possessions,  said  he  had  a  certain  number  of 
occupied  tenements  [mansi  vestiti,  or  jjosscssi),  and 
a  certain  number  of  unoccupied  tenements  [mansi 
ahsi).  The  unoccupied  tenements  were  filled  up 
as  soon  as  possible  (^^). 
Terms  used       Thc  tenants  are  variously  described  as  familice, 

to  describe  ,  .. 

the  tenants,  manemcs,  7nansionaru,  mansorcs,  casam,  cassah,  scrvi, 
mancipia,  trihutarii,  parscalchi,  ccnsuaks,  accolae,  ciil- 
tores,  colonic  villani,  rustici,  rusiicani,  Uii,  inquilini, 
homines  (^°). 

Nobounda-       There  were  no  boundaries  between  the  lands 

riGS  DGtWCGll 

the  isolated  occupicd  by  ouc  frcc-lord  and  another,  in  the 
early  period  ;  in  the  time  of  Caesar,  for  example. 
He  says  of  the  Germans,  that  no  man  had  any 
definite  amount  of  land,  or  any  boundaries  to 
what  he  occupied,  —  nccqiie  qidsqiiam  agri  modum 
cerium  aut  fines  hahct  lyroprios  (^^).  There  were, 
probably,  no  boundaries  between  tlie  holdings  of 
the  free-lords,  in  the  time  of  Tacitus ;  for  even 
after  the  wanderings,  when  settlements  were  per- 
manent, and  the   population  was  increasing   and 


AMONG  THE  GERMANS.  13 

spreading,   the  forest  or  waste  "svas  commonly  re- 
garded as   a   sufficient  boundary.     It  was  called 
the  confinium  silvarum,  the  marca  de  silva,  or  marca  The  marca 
dlvaiica  (^-).     Then   gradually  it   became  custom- 
ary to  define  boundaries  more  precise!}',  and  the  How  boun- 
free-lord  would  go  out,  in  company  with  his  neigh-  first  laid 
bors   and   friends   as  witnesses,  and  make  a  cir- 
cuit of  his  domain,  noting  as  he  went,  by  means 
of  marks    on    trees   or  stones,  mounds    of  earth, 
or  other  signs,   the    limits   to   his    property  ('"). 
When  this  had  been  done,  and  he  had  occasion 
to   refer  to  his  estate,  he  usually  mentioned  the 
fact  that  boundaries  had  been  marked,  and   he 
often  described  them  briefly  (•^^). 

Beyond  the  land  which  the  free-lord  occupied 
at  first,  —  when  he  had  built  a  house  for  himself, 
and  houses  for  his  people,  when  he  had  assigned 
arable  lots  to  the  cultivators,  when  he  had 
cleared  a  sufficient  tract  of  meadow  and  pasture 
land  for  the  live-stock  of  his  colon v,  —  there 
was  often  a  good  deal  of  land  still  unoccupied, 
which  he  could  appropriate,  as  he  had  occasion  Appropria- 
or  need  ;  and  from  time  to  time  he  extended  his  cipicd  land. 
possessions  in  one  direction  or  another  ("').  When 
the   free-lord  described    his    possessions,    he    said  Unoccupied 

1  1        1       1    1        •  n         1  •  \^vi^  re- 

tliat  he  had  besides  his  own  house  (the   mansiis  gaided  as 

.     7'',\  .•  1  1  /  ..  .    undivided 

inaomimcatus)  certain    otlier  houses  [mansi  ingcnm-  property. 
leSy  Males,  seniles)  C"),  a  corresponding  number  of 
arable  lots   (hubae)  (^''),  and  an  indefinite   extent 
of  meadow,  pasture,  and  forest  land   round  about 


14  EARLY  HISTORY  OF  LAND-HOLDING 

(praiiSj  pascids,  silvis,  etc.)  (•'^)  ;  and  he  often 
added  that  he  had  also  lands  not  yet  occupied 
or  appropriated,  to  be  occupied  or  appropriated 
whenever  occasion  or  need  should  arise,  —  terras 
exdr pandas,  inquircndas,  incuUas,  inqidsitas  (^^).  In  a 
Middle-Rhine  document  a  certain  man  alienates  : 
de  proprisa  diva  jornales  odo,  et  aliam  commiinem 
silvam  non  j^roprisam.  In  a  document  of  the  Re- 
gensburg  collection :  has  iiaque  res,  are  alienated ; 
et  quicquid  in  postermii'  silvariim  extupatione  omniqiie 
alia  cultura  amplificetiir.  In  another  document  of 
the  same  collection  a  certain  man  named  Papo 
{iirhis  p)Tacfecins)  alienates  what  he  calls  a  prae- 
diiim  silvaticum,  which,  inasmuch  as  it  lay  within 
sight  of  his  estate  of  Steninga,  he  appropriated, 
in  Sfjlva  communi  Nordivald  ("'). 
Establish-  If  tlic  frcc-lord  had  so  many  cultivators  that 
ant  colonies,  hc  could  uot  find  lots  for  tlicm  all  near  his  resi- 
dence, he  sent  off  a  colony  or  colonies  to  distant 
places,  where  there  was  plenty  of  land  (*^).  The 
leadership  of  such  colonies  was  intrusted  to  a 
member  of  the  family,  or  else  to  a  faithful  ser- 
vant and  agent,  —  a  preposittis,  actor,  major,  or 
villiciis  (^). 

It  was  the  business  of  the  agent  to  superintend 
the  division  of  the  land,  and  its  cultivation;  to 
collect  the  dues,  and  to  keep  the  peace  among 
the  colonists.  Sometimes  the  free-lord  had  in  his 
possession  several,  or  a  great  many  such  colo- 
nies {'^). 


AMONG  THE  GERMANS.  15 

It  "was  in  order  to  make  room  for  colonies  that  Conquered 
the   freemen  endeavored    to   enlarge    the  border  served  for 
land  around  their  original  settlements,  as  much  as  nies. 
possible  in  every  direction.     It  was  thought  very 
desirable  that  the  state  should  have  a  wide  border 
land.     This  was  the  object  of  many  expeditions. 
Caesar  says  of  the  Suevi,  that  they  had  extended 
their  border  land   in   one   direction  six  hundred 
miles  (^).     Upon  such  a  tract  of  country  a  great 
many  colonies  might  be  planted,   with   dwelling- 
houses  for  the  colonists,   with    arable   lots,  with 
clearings  of  meadow  and  pasture  land,  with  the 
forest  and  waste,  or  mark-land,  as  it  w\as  called, 
spreading  round  about  and  in  among  them,  as  a 
boundary  for  each  one  and  for  all. 

The  freeman  usually  gave   some   name  to  his  Names  given 

, .     .  .   ,      .     ^  to  the  I'arm- 

farmstead  or  colony,  to  distniguish  it  from  others,  steads  and 
Names  ending  in  the  syllables  -hack,  -feld,  -ivaJd, 
are  very  common  in  the  early  documents.  They 
illustrate  very  well  what  Tacitus  says  of  the  Ger- 
mans :  colunt  discreti  ac  diversi  id  fans  id  campus 
lit  nemits  placuit.  The  names  given  to  farmsteads 
or  colonies  often  refer  to  peculiarities  of  the  soil 
or  situation ;  its  mountainous,  hilly,  rocky,  flat,  or 
swampy  character.  Sometimes  they  refer  to  cer- 
tain kinds  of  trees  growing  in  the  neighborhood,  — 
oaks,  elms,  lindens,  pines ;  or  to  animals  or  birds, 
—  wolves,  bears,  eagles,  falcons  (*^).  The  most  in- 
teresting names,  however,  are  the  personal  names.  Personal 

.  names  of 

The  freemen  were  very  apt  to  name  their  larm-  places. 


IG  EARLY   HISTORY   OF   LAND-HOLDING 

steads  or  colonies  after  themselves.  Widerliolt, 
for  example,  in  one  of  the  Fukla  records,  alien- 
ates his  villa  named  Widerholtesleba,  —  villam  sui 
nominis  Widerholtslcha,  In  another  record  of  the 
same  collection,  a  certain  man  alienates  a  villam 
sui  nominis  Bechcndorf.  In  one  of  the  St.  Gall  rec- 
ords we  have  a  roncale,  mco  niincupatum  nomine  (^^). 

Local  names  of  a  personal  or  patronymic  char- 
acter abound  in  the  records.  They  are  probably 
more  numerous  than  any  other  class ;  and  they 
help  to  establish  the  fact,  that  in  the  earliest  time 
individuals  and  fomilies  settled  apart  from  one 
another,  and  not  together  in  groups,  —  in  isolated 
farmsteads,  and  not  in  villages. 
The  isolated  The  holding  of  the  freeman  consisted,  in  the 
scribed.  first  placo,  of  liis  homestead.  Then  there  were 
houses  of  dependants,  freedmen,  or  slaves.  There 
were  also  outbuildings,  —  sheds  for  the  animals, 
barns,  and  storehouses  (^").  Around  all  these  build- 
ings there  was,  usually,  an  enclosure,  —  a  fence, 
hedge,  ditch,  rampart,  or  wall  (*^).  Beyond  this 
enclosure  were  the  lots  of  arable  land,  —  the  agri 
pro  numcro  cuUontm  occupaii.  Beyond  and  around 
the  lots  of  arable  land  spread  the  open  meadow 
and  pasture.  The  mark  of  forest  and  waste  land 
enclosed  and  surrounded  the  settlement  (*^). 
Absoiutp  in-      FroHi  an  economic  point  of  view,  the  freeman 

dependence  .  i  •     /» 

or  the  free-    was  Completely  mdcpcndent.     He  had  at  his  farm- 
man  on  his  T^iii  11  •       ^     ^ 

domain.       stead,  and  ni  the  lands  round  about  it,  belonging 
to  it,  every  means  of  living  comfortably.     From 


AMONG  THE   GERMANS.  17 

the  wood  of  the  forest  he  built  his  house,  houses 
for  his  people,  sheds  for  the  animals,  barns  and 
storehouses.  The  wood  of  the  forest  served  also 
for  fuel.  From  the  live-stock  came  meat,  milk, 
and  cheese.  From  the  hides  of  the  animals,  warm 
clothing  was  made.  There  w\as  pasture  ground, 
upon  which  the  animals  grazed  in  summer,  and 
grass  land,  which  provided  them  with  winter  fod- 
der. There  was  also  land  to  plough,  upon  Avliich 
the  grain  was  planted.  From  this  a  supply  of 
bread,  and  beer,  which  was  brewed  from  barley  or 
some  other  grain,  was  obtained.  Out  of  flax  or 
hemp,  cloth  was  made  by  the  women.  Thus  the 
freeman  had  at  his  farmstead,  and  round  about  it, 
every  necessary  means  of  subsistence.  This  inde- 
pendence of  the  house-father  [Sclhstdndigkcit  des 
einzelncn  Hausvaters)  in  early  German  society,  is 
a  fact  of  great  interest  (^^). 

It  is  often  argued,  that  because  there  were  no  No  evidence 
lixed  hmits,  no  boundaries,  to  nidividual  holdmgs,  ty  of  land 
the  land  must  have  been  owned  collectively  or 
communistically.  It  is  said  that  the  statements 
of  Caesar  go  to  prove  the  existence  of  commu- 
nity of  land ;  Fcldgcmeinschaff,  the  Germans  call  it. 
The  argument  is  inconclusive.  The  absence  of 
fixed  limits  and  boundaries  proves  simply  that  the 
land  was  undivided  property ;  it  does  not  prove 
that  it  was  common  property.  From  what  Ca3sar 
says  it  remains  an  open  question  whether  the  land 
was  regarded  as  common  property  or  not.     Nor 


18  EARLY  HISTORY   OF  LAND-HOLDING 

Nocviiioncp  do  Avc  f>:ather  anythinfi:  from  Tacitus  in  regard 
ty  of  land  to  tliG  owncrsliip  01  tliG  land,  —  whether  it  was 
tus.  vested    in    the    freemen    collectively    or   distribn- 

tively.  We  know  from  the  statement  colunt 
discreti  ac  divcrsi,  that  there  w\as  no  association 
between  the  freemen  in  their  stock  farming  and 
agricidture ;  no  tvirlhscJiaftUchcr  Vcrhand,  as  the 
Germans  say.  We  know  this,  but  w^e  know 
nothing  more.  The  question  wdiether  the  own- 
ership of  the  land  w'as  vested  in  the  freemen 
collectively  or  distributively,  remains  to  be  settled 
by  the  testimony  of  the  later  records. 
No  equality      It  lias  bccn  argued  from  the  passage  of  Ccesar, 

of  holdin<=r  .  .....  .       . 

ill  Casar's  quum  siicis  qiiisque  opes  cmn  potcnhsstmis  acqiian  vi- 
deat  [''^),  that  the  holdings  of  land  were  all  equal ; 
and  it  has  been  argued,  that  this  goes  to  prove 
the  existence  of  community  of  land.  It  is  not  at 
all  likety,  however,  that  Caesar  meant  to  imply, 
by  the  words  cited,  that  the  holdings  of  the 
freemen  were  equal.  If  every  man  could  appro- 
priate as  much  land  as  he  wanted,  it  could  very 
well  be  said  that  there  Avas  an  equality  of  rights 
in  regard  to  the  land.  Cresar  can  hardly  have 
meant  anything  more  than  that.  The  existence 
of  potcntissimi,  as  distinguished  from  Jmmiliores 
and  plehes,  points  clearly  to  the  existence  of 
unequal  holdings.  If  no  man  held  more  land 
than  another,  it  is  not  likely,  unless  some 
men  held  a  great  deal  more  than  they  could 
use,  that  there  would  have  been  any  poto?/?s5w?ze. 


time. 


AMONG  THE  GERMANS.  19 

Then  we  must  remember  that  equal  holdings 
imply  precise  limits  or  boundaries;  and  Caesar 
says  that  there  were  none,  —  ncque  qidsquani  agri 
modum  ccrtum  ant  fines  habet  proprios :  so  if  he 
meant  to  say  in  one  passage  that  the  holdings 
of  the  freemen  were  all  equal,  he  gives  us  to  un- 
derstand in  another  that  they  were  not  equal. 
He  contradicts  himself,  and  w^e  may  believe 
what  we  please. 

According   to    the    testimony   of    Tacitus    the  No  equality 

11T  r>       ^  c  iTTii      of  holdillEf 

liokhngs  01  the  ireemen  were  unequal.  He  tells  in  Tadtus's 
us  that  tlie  freemen  had  slaves,  who  cultivated 
the  land  for  them  in  the  manner  of  Roman 
coloni.  Then  he  tells  us  that  the  amount  of  land 
brought  under  cultivation  at  any  time  depend- 
ed u})on  the  number  of  cultivators.  The  amount 
of  land  whicli  the  freeman  brought  under  cul- 
tivation depended,  therefore,  either  upon  the 
number  of  able-bodied  persons  in  his  ftimily,  or 
upon  the  number  of  his  slaves,  or  both  together. 
It  was  determined  by  the  number  of  agricultural 
laborers  he  had  in  his  household,  or  attached  to 
it  in  houses  of  their  own,  near  by  or  in  distant 
colonies.  The  number  was  variable  in  every 
case.  The  holdings  of  the  freemen  were  there- 
fore unequal  ('-). 

Let  us  suppose,  however,  for  the  sake  of  argu-  rommunity 
ment,    that    the    holdmgs    oi    the    Ireemen    were  to  Loin- 
equal.     Would  that  prove  the  existence  of  com-  .unaiity  of 
munity    of    land    among    them,  —  collective    or'"  ^^'^'" 


20  EARLY  HISTORY   OF  LAXD-IIOLDING 

coTiiinunistic  ownership  of  it  ?  Ten  men  go  out 
^vitll  ca  net  to  catch  fish,  and  catch  some,  and 
on  their  return  divide  tlieni  equally.  Should  we 
say  that  the  iish  were  common  prof)erty  after 
they  had  been  thus  divided  ?  Surely  not.  So  in 
regard  to  land  :  when  a  body  of  men  miite  to- 
gether and  occupy,  by  appropriation  or  by  con- 
quest, a  tract  of  land,  and  then  divide  it  into 
equal  shares,  that  is  no  evidence  of  collective 
ownership.  This  must  be  proved  upon  other 
grounds.  Equality  is  found  where  there  is  col- 
lective ownership.  It  is  also  found  where  there 
is  no  collective  ownership.  In  itself,  therefore, 
equality  is  no  evidence  of  collective  ownership. 
It  was  only  for  the  sake  of  argument,  how- 
ever, that  we  allowed  that  the  holdino-s  of  the 
freemen  may  have  been  equal.  The  statements 
of  Ciesar  and  Tacitus,  taken  together,  prove 
quite  conclusively  that  no  such  equality  existed. 
The  concurrent  testimony  of  the  later  records 
might  be  adduced  if  it  were  necessary. 
Thcquos-         The    question    whether   the    ownership   of  the 

tion  as  to  the  ,  . 

ownership  of  land  was  vcstcd  in   the  freemen    collectively  or 

the  land  .  . 

must  be  10-  distributively,    still    remains.     I  here    is   nothing 

ferred  to  lat-  .  .   .  n   m  r  rr\       •  l 

er  records,  in  tlic  Statements  eitiier  or  Caesar  or  or  lacitus 
to  enable  us  to  answer  it.  We  shall  have  to 
turn  to  the  laws,  formulae,  and  documents  of 
later  times.  From  these  we  shall  be  able  to 
reach  a  conclusion,  without  doubt. 

In   the   law  of   the   Bavarians  ("^),  the    holder 


AMONG   THE  GERMANS.  21 

of  a  piece  of  land  declares  that  he  has  witnesses  The  right  of 

,,„,,,  ,,  ^_  .       possession 

to  tell  01    the   labor   lie   has    expended    upon  it ;  secured  by 

1  1  •       (•     1  1    /•     1  •         •  •  ^   • ,       1  force,  among 

how  his  lather  kdt  him  m  possession  ot  it;  how  the  Bavari- 
therefore  it  must  be  his.  If,  however,  the  claim- 
ant declared  that  this  was  not  so,  that  the  land 
helonged  to  him,  there  was  no  appeal  except 
to  the  issue  of  battle.  The  litigants  met  and 
fouu'ht,  and  he  who  won  the  battle  took  the 
land. 

So  in  the  Saxon  law  ("*) :  when  a  man  found  Among  the 
his  land  occupied  by  another,  he  collected  wit- 
nesses to  say  that  the  land  was  his.  Neverthe- 
less, if  he  who  had  possession  of  the  land  refused 
to  accept  this  testimony,  the  matter  was  settled 
by  battle,  —  si  occujKilor  contradlxerit  camj)0  dijudi- 
cehir. 

So  also  in  the  Ripuarian  law  (^^) :  if  any  one  Among  the 
wished  to  fight  for  his  inheritance,  he  first  brought 
witnesses  to  say  that  it  was  his  inheritance ;  then, 
unless  the  claimant  withdrew,  the  matter  was 
settled  by  a  combat,  before  the  king, — cum  armis 
suis   se   def ensure  studeat  ante  regem.     We  find   the  Among  the 

,  1  ,  .      ,        T  1         1      Alaraanni, 

same  custom  among  the  Alamanni,  the  Lombards,  Lombards, 

,      ,,  ^  1        /-c\  aii'l  other 

and  other  (merman  peoples  ("""j.  nations. 

If  a  man  trespassed  upon  the  land  which  a 
neighbor  regarded  as  his,  and  persisted  in  do- 
ing so,  and  his  neighbor  persisted  in  resistance, 
they  fought  it  out  between  themselves,  and  he 
who  won  took  possession.  There  was  no  appeal 
except  to   the   issue  of  battle.     So  when   two  or 


22  EARLY  IIISTOliY   OF  LAXD-HOLDINa 

Thisistrae  morc  gToups  of  men,  groups  of  kinsmen,  co-heirs 

of  I'ainilies,  i  •    ^  ^ 

as  well  as  of  and   neigliDors,  fell    to    quarrelling    in    regard   to 

indiviiluals  ;     .  r»       i      • 

ofcian.s,  as   the   cxtcut  01    tlieu*   rcspectivc  possessions,  they 

well  as  of  J.     •         1      -  ii  1  •       • 

famUies.  met  HI  battle,  or  else,  apponitmg  representative 
champions,  allowed  the  matter  to  be  settled  by 
a  duel.  This  we  know  from  a  passage  of  the 
Alamannic  law  ('). 

When  the  Germans  told  Ca3sar  (^^)  that  they 
were  afraid,  if  they  settled  anywhere  perma- 
nently, the  powerful  would  drive  the  weak  from 
their  possessions  (posscssioncs),  and  so  make  great 
estates  {^atos  fines)  for  themselves,  they  must 
have  had  this  lawless  condition  of  laud  holding 
in  their  minds. 

Possession        The  word  meaning  2^ossesswn,  which  occurs  in 

in  the  early  i  •  i  i  •  •  i  i       i  i 

time.  media3val   records,  (/ctvere,   is  without   doubt   the 

same  word  as  givcrra  or  iverra,  the  French  guerre, 
our  tvar ;  which  leads  us  to  believe  that  a  taking 
possession  in  early  times  amounted  to  a  decla- 
ration of  war  against  all  possible  claimants  (^^}. 
The  word  seisin  in  our  modern  law  should  be 
remembered  in  this  connection.  When  a  man 
brought  suit  for  the  recovery  and  possession  of 
landed  property  he  declared  war,  giverra  or  tverra  ; 
invasionem  fecit,  in  the  Latin  [^^).  The  fact  is 
recorded  in  certain  quite  early  documents. 

Seizures  and      Landed    posscssious    are    constantly    described 

con(|iicstsV)y 

individuals,  as  scizurcs  or  couqucsts,  —  comprchensiones,  p'oprisa, 

clans. ^ '       conqiicsta,  capturae  (^^).     The    phrase  of  the  early 

formula,  ego  ct  progenitores   mei    earn  \yillani\  potes- 


A^IONG   THE   GERMANS.  23 

tative  possedimus  {^~),  illustrates  the  same  idea. 
The  conclusion  is,  that  the  jiossession  of  land 
was,  in  the  earl}^  time,  secured  by  appropriation 
and  maintained  by  force.  Land,  being  appropri- 
ated or  conquered  by  the  nation,  was  subject  to 
appropriation  or  conquest  by  the  clans.  The 
land  appropriated  or  conquered  by  the  clan  was 
subject  to  appropriation  or  conquest  by  the 
family.  The  land  appropriated  by  the  family  was 
subject  to  appropriation  by  the  individual. 

These  conquests  or  appropriations  were  usually 
made  in  an  orderly  and  peaceable  manner.  So 
long  as  there  was  plenty  of  land,  it  was  not  worth  As  long  as 

tliGrc  Wcis 

while  to  quarrel   about  it.     The  clans  separated  plenty  of 
from  one  another,  under  their  respective  leaders,  was  very 
and    each    clan  took  a  territory  for  itself     Then  n.iiiii'rabout 
the    families    in    each    clan    separated   from    one  ^*" 
another,  in  the  same  wiiy,  and  each  family  took 
a  tract  of  land  for  itself     Within   these    family 
appropriations  the  individual  established    himself 
in    the    manner    already    described.     He    built   a 
house    wherever   he    pleased,  and   houses  for  his 
people.     Arable    lots    were    marked    off   for  the 
cultivators.     Some   land   was  reserved   for  a  hay 
crop,  and  some  more  was  given  over  to  the  herds 
of  animals,  as  pasture  ground  {^^'^). 

There  were  no  precise  boundaries  between  the  Absence  of 
possessions  of  one  free-lo]'d   and  another.     There  daiies. 
was   no    need    for   any.     The    free-lords    settled 
apart   from    one    another,    and    there    was    more 


24  EARLY  HISTORY   OF  LAND-HOLDING 

than    enough    land    for   everybody,  in   the    early 
thne  of  ^Yllicll  we  are  speaking. 
Terms  used        Possessions  of   land    are    very    commonly   de- 

to  desciibo  •!       i 

possessions  scribed  as  occujmtioncs,  posscssioiics,  conj)arata,  ela- 
horata,  collaborcUa,  cxaria,  stirjn,  stirpationes,  cxtirpa- 
iioneSy  novalia,  mastunc/a,  nmcaks,  cinciadae,  ambita, 
circuiti,  circuitiones,  scpti,  comjjrehcnsiones,  ])roprisa, 
Ufangay  conquesta,  conquisiiiones,  capturae,  concapta, 
dominationes  (*^*).  The  formula  prcdia  proprio  la- 
hore  meo  libera  manu  acquisita  is  not  nncommon. 
We  meet  with  the  villavc  mm  propriis  manibus 
acqumta.  The  formula  carpere  d  possidere  hcre- 
ditatem  occurs  (*^''). 
The  nature  In  vicw  of  tliis  WO  are  not  surprised  to  learn 
itance  in  that  the  carlicst  idea  in  the  word  crbe,  an  in- 
thues/^'^  heritance,  is  of  something  worked  out  or  elabo- 
rated. It  is  arU  in  the  Gothic ;  crU^  in  the  Old 
High  German ;  and  these  words  have  the  same 
root  as  arbeit^  a  piece  of  w^ork  (°'^).  The  inher- 
itance, according  to  the  prhnitive  German  idea, 
was  something  which  a  man  acquired  for  himself, 
by  his  own  labor. 

The  people  spread  over  the  country.  They 
took  possession  of  tracts  of  land,  made  clearings, 
built  houses,  and  in  that  way  established  inher- 
itances for  themselves.  They  were  no  inherit- 
ances properly  speaking,  but  as  they  came  to 
be  inheritances  whenever  settlements  were  per- 
manent, they  may  be  correctly  enough  described 
as  inheritances  (*^"). 


AMONG   THE   GERMANS.  25 

In  a  clociiment  of   the    Chartularium    Wertlii- a  easo  in 

„  .  T  ^         1  •  •       illustration. 

nense  (""),  a  certain  man  alienates  his  appropria- 
tion and  inheritance,  describing  it  by  the  words, 
j)articulam  hacreditatis  et  proprii  laboris  mei ;  id  est 
totam  comprcJicnsionem  in  sylva  que  dieiiur  Hoisd. 

It  is  not   necessary   to    suppose    that   any    di-  Xo  division 

1  1  1  1      <^f  inlierit- 

visions  or  land  among  descendants  were  tlionght  ancesinthe 
of  at  first.  They  hved  on  in  the  father's  or 
grandfather's  house,  and  held  their  property  in 
common.  Grandsons  and  even  great-grandsons 
often  continued  to  dw^ell  together  in  this  way 
upon  one  inheritance,  as  a  house  community. 

The    time    came    after   a   while,   however,    in  How  migra- 

^         .      .  tions  were 

most  cases,  when  the  heirs  were   too  numerous  made,  and 

, .  .  ,  ,  i  1  I  iiew  inherit- 

to  live  in   one   house   together,  as  a  house   com- ances  estab- 

munity.  The  pasture  and  grass  lands  were  in- 
sufficient to  maintain  all  the  live-stock ;  or  else 
the  number  of  slaves  or  serfs  Had  increased 
so  much  that  lots  (Jiuhae)  could  not  be  found 
for  them  all.  It  was  then  necessary  to  migrate 
to  a  larger  territory.  The  live-stock  and  slaves 
were  divided,  presumably  in  equal  shares,  and 
a  new  settlement  was  made.  Each  man  appro- 
priated in  the  new  territory  an  inheritance  for 
himself  and  his  descendants.  He  made  a  clear- 
ing, and  built  a  house  for  himself,  houses  for 
his  people,  and  sheds  for  tlie  animals.  Arable 
lots  were  marked  off  for  the  cultivators,  and  the 
animals  were  turned  out  to  pasture,  as  already 
described.  We  have  many  inheritances  then 
instead  of  one. 


26 


EARLY  HISTORY  OF  LAND-HOLDIXG- 


Multiplica- 
tion of  in- 
heritances. 


Ancient 
houses. 


Sometimes  the  original  settlement  was  perma- 
nent, and  other  settlements  arose  round  about 
it,  as  offshoots  from  it.  One  heir  remained  in 
the  original  settlement.  This  was,  perhaps,  the 
eldest  son,  or  the  eldest  male  of  the  eldest  line 
in  the  family.  The  other  heirs  went  off  with 
their  movable  property,  their  shares  of  live-stock 
and  slaves,  and  established  themselves  here  and 
there  in  the  surrounding  countr}^  Thus  out  of 
one  household  others  arose,  from  these  still  others, 
and  the  population  spread  away  from  the  original 
settlement  farther  and  farther.  In  this  way  in- 
dividuals became  families,  families  became  clans, 
and  clans  became  nations.  The  original  appro- 
priations and  inheritances,  instead  of  being  divided 
and  subdivided,  were  multiplied.  It  was  only  at 
a  later  time,  when  there  was  a  lack  of  land,  that 
inheritances  were  subdivided.  In  the  early  time 
they  were  multiplied,  according  to  the  increase 
of  the  population. 

The  original  households,  as  the  sources  and 
centres  of  national  life,  were  probably  regarded 
with  a  certain  veneration.  The  heads  of  these 
households  were  probably  looked  upon  as  repre- 
sentatives of  the  original  stock  of  the  nation, — 
the  stock  from  which  all  its  families  and  clans 
had  been  derived.  They  were  consequently  re- 
garded as  chiefs  or  kings  of  the  clan  or  nation  ; 
and  the  heads  of  the  other  households  were 
subordinate  chiefs  or  kings,  or  noblemen,  or  sim- 


AMONG  THE  GERMANS.  27 

ply  freemen,  according  to  the  antiquity  of  their 
respective  households.  We  have  no  evidence  to 
offer  in  support  of  this  theory,  however. 

At  this  time  divisions  of  the  land  among 
descendants  were  very  rare.  Stock  and  slaves 
were  divided,  not  the  land.  The  people  spread 
freely,  taking  their  stock  and  slaves  with  them, 
and  settling  wherever  they  pleased.  As  soon, 
however,  as  the   land  became   thickly  populated  The  origin 

of  clau  vil- 

everywhere,  so  that  there  was  little  or  no  room  lages. 
for  new  inheritances,  the  heirs  in  those  already 
established  were  obliged  to  continue  living  to- 
gether. It  seldom  happened,  however,  that  the 
heirs  could  remain  under  one  roof.  New  houses 
were  built,  in  which  the  members  of  the  family 
distributed    themselves.     Thus    villages   arose    in  The  mnzei- 

,,  1  f,    ■,  •!.•  T        i.1  1  /iq/" becomes 

the   place    ot   house    communities.     In  the  place  a  GcUfer- 
of  the  Einzclhof  yYQ,  have  a  Gchofcrschaft  {^^). 

When    the    time    for    cultivating    the   land   ar- Arable  lots 
rived,  arable  lots  were  marked  off  for  the  slaves,  cording  to 

IP  T    i    -1      J      1  ji  •  the  imniber 

as  before,  distributed  among  them,  one  apiece,  of cuitiva- 
ploughed  up,  and  cultivated.  The  lots  were 
no  longer,  however,  embraced  within  one  inher- 
itance ;  they  were  distributed  among  several  or 
many  inheritances.  Each  householder  in  the 
village  regarded  the  lots  which  were  held  by  his 
slaves  as  his.  As  new  lots  were  brought  under 
cultivation  {per  annos),  the  householders  in  the 
village  took,  always,  each  one  as  many  lots  as 
he    had    slaves.     If    then    the    householder    was 


28  EARLY  HISTORY  OF  LAND-HOLDING 

The  inherit-  askecl    to   describc   his   inheritance,   he    said,    he 

ance  in  the  -,  •,  i  •    i       i  •     t     i  . 

cianviihige.  ownccl  a  liouse  which  he  occupied  himself,  and 
two  or  three,  or  more,  other  houses,  occupied 
by  dependants  or  slaves,  a  corresponding  num- 
ber of  arable  lots,  and  an  indefinite  amount  of 
meadow,  pasture,  and  forest  land  beyond. 

How  the  im-      The    meadow,  pasture,  and   forest  land,  being 

diviJtd  laud        ^   .  .       , 

was  regard-  subjcct  to   appropriation,   was  regarded  as  undi- 
vided property.     It   is  so   described  in  the   early 
Enkrge-       rccords  ("").     If  a  householder  in  the  village  ac- 

nieut  of  in-  . 

heritances     quircd  SO  iiiaiiy  slavcs  that  he  had  no  place  for 

bv  appropri-     ,  •  i  -n  -i 

ationsof      tliem   111    tlic   Village    proper,  he  sent   them  out 
laud.  upon    the    undivided   land.     There  they  made  a 

clearing,  marked  off  arable  lots,  and  built  houses 
for  themselves.     The  householder  in  the  village 
counted    these    houses   and   arable   lots  with  his 
other  possessions,  as  part  of  his  inheritance. 
A  case  in  In  a  Lowcr  Ehine  record  of  Lacomblet's  Col- 

lection, Hembald  the  son  of  Heribald  alienates 
an  appropriation  which  he  has  made  upon  the 
common  land  of  his  kindred, — in  commiinione  pi^ox- 
imorum  siiorwn,  —  and  he  calls  it  a  comprchensio  in 
propria  herediiatc.  Many  similar  examples  might 
be  adduced  (^^). 
The  shares  As  time  wcnt  on,  however,  the  question  arose, 
vidediamr  liow  mucli  of  tlic  Undivided  land  (the  commnnio 
proximormn)  one  man  should  have,  —  what  was  his 
rightfid  inheritance  thereof  In  answer  to  this 
question  it  was  decided  that,  inasmuch  as  inher- 
itances in  the   village,  and   of  the   arable    land. 


are  defined. 


AMONG  THE  GERMANS.  29 

were  already  defined,  the  inheritances  of  the 
undivided  land  onght  to  be  determined  accord- 
ingly. It  was  decided  that  every  householder 
in  the  village  should  have  as  many  shares  of 
the  undivided  land  as  he  had  houses  {mansi)  in 
the  village  or  outside  of  it,  or  arable  lots  [huhae); 
and  if  the  land  remained  undivided,  rights  of 
enjoyment  were  to  be  proportioned  to  rights 
of  property. 

We  read  in  the  Burgundian  law  that  forest,  Passages 
mountain,  and  pasture  lands  were  to  be  enjoj-ed  Bmgundian 
pro  rata :  sylvarum,  montium,  et  jiasciioriim,  imicidque 
pro  rata  siijipdit  esse  communionem.  At  the  same 
time  they  might  be  divided  among  the  share- 
holders, if  any  one  wished  to  have  his  share 
separated  from  other  shares :  agri  quoque  commims, 
nulUs  terminis  limitaii,  exaeqiiaiionem  inter  consortcs 
nullo  tempore  dcnegandam.  Then  we  read  how  the 
division,  when  it  took  place,  was  to  be  made 
with  reference  to  the  extent  of  land,  or  lots  of 
land,  held  in  severalty  :  secundum  terrarum  modum 
vel  possessionis  suae  rat  am  (""). 

Through  the  early  time,  live-stock  and  slaves  inhoritnncos 

,  ^.     .  ^      ^  .  T       /^        1      of  stock  and 

alone    were    divided,     ihe    heirs    spread    freely  slaves  <iivi(i- 
over   the    land,  with    their   respective    shares   ofaiu'esotiaiui 
stock    and   slaves;   jjut  after   a  while   it   became  iirtheVariy 
necessary  to   divide   the   land   also,  and  the  rule 
of   inheritance  which  governed    the    distribution  Afterwards 
of  stock  and  slaves  came  to  govern  tlic   distril)H- itanecsof 
tion  of  land   also.     References  to    shares  of  land  jivkied  also. 


30  EARLY  HISTORY  OF  LAND-HOLDING 

Divisions  rGceivGcl  ill  clivisioiis  among  brothers  are  very 
brothers.  00111111011  ill  OLir  early  documents  ("^).  We  read 
in  the  early  formula)  how  brothers  ought  to 
divide  their  inheritance  equally,  and  how  they 
did  so,  —  lit  inter  se  de  res  corum  divider e  dchuerimt, 
quod  ct  ita  et  fecerunt.  We  read  how,  in  these 
divisions,  each  heir  received  his  rightful  por- 
tion, —  iinicuique  ex  ijjsis  justi  dehita  poriionem  ter- 
minetur  ("*). 

The  rule  of  the  Alamannic  law  is,  that  brothers 
must  not  alienate  or  otherwise   scatter  their  in- 
heritance until  a  just  division  has  been  made,  — 
id  fratrcs,  pod  mortem  pairis  eorwn,  hcreditatem  non 
dissipcnt,  anteqiiam    dividant   eam.     In    the   St.  Gall 
records,  containing   alienations  of   Alamannic    in- 
inheritances  lieritanccs,   WO    SCO  that  they  consisted  of    land 
landas^vcll  as  wcll  as  movablcs  ("°).     We  find  a  similar  rule 
property,  at  of  inheritance  in  the  law  of  the  Bavarians  ;  and 
the  I'oik-'     ill    the    documents   of    the    Historia   Frisingensis 
^^^^'  we  have  descriptions  of   the   inheritances   which 

were  divided,  according  to  this  rule  ("'').  So  in 
the  other  Folk-laws.  The  rule  prescribing  an 
equal  division  among  sons  and  brothers  obtained 
generally  ('^) ;  and  in  the  documents  of  various 
localities  we  see  how  the  inheritances  divided 
consisted,  regularly,  of  land  as  well  as  movables. 
It  became  customary  for  brothers  to  divide  the 
land  of  their  inheritance  soon  after  receiving 
it,  and  the  portions  which  they  received  respect- 
ively passed   to  their  respective   descendants,  to 


AMONG  THE  GERMANS.  31 

be  divided  and  subdivided  through  the  branches 
of  the  family  and  clan. 

Still   it   often    happened    that   an   inheritance,  inheritances 

„   .  .        ,  T    •  1     1     f>  undivided 

or  part  of  it,  remanied   undivided  lor  a  genera- for  a  genera- 

p  tion  or  two. 

tion  or  two ;  in  certain  cases,  lor  many  gen- 
erations. We  read  in  the  Lombard  law  about 
property  of  dillercnt  kinds  [de  rebus  sen  cle  caais 
vel  de  term)  not  yet  divided  among  the  heirs 
{i)iter  fratres  vel  inter  parentes).  Reference  is  also 
made  to  property  wdiich  has  been  divided  among 
grandsons  [qucie  divisae  fuerint  inter  fratres  sett 
ncpotes)  C^^). 

In  a  document  of  the  Lower  Ehine,  ^ve   have  The  coheirs 

1    /  7  ,.,,.,        in  an  uiuli- 

a  grant  or  hereditary  land  [agrum  hereclitaru)  by  vided  iniier- 
a  body  of  coheirs  and  kinsmen  {coheredes  et  con- 
participes  et  consarigidnei).  In  another  document 
of  the  same  region  we  have  a  number  of  kins- 
men descril^ed  as  coheirs  and  shareholders  in 
an  undivided  inheritance  [coJieredihiis  et  conpartici- 
pihus  in  uno  pcdrimonio)  (^^).  In  the  year  855,  a 
dispute  arose  between  the  Abbot  of  St.  Gall  and 
a  group  of  heirs  in  regard  to  the  right  of 
ownership  in  certain  lands.  Inter  nos  et  Rihivinwn 
et  coheredes  ejus  \_frcdribiis  necnon  ceteris  coheredibus~\ 
fxdt  contentio.  The  parties  came  to  an  agreement, 
and  boundaries  were  fixed ;  and  Rihwinus  and  his 
associates  held  their  inheritances  distinct  from 
the  property  of  St.  Gall,  liihwinus  et  coheredes 
ejus  snas  portiones  per  se  habeant,  cxcepto  id  pascua 
commimia  in  agris  habeamus.     It  is   an   interesting 


32  EARLY  HISTORY   OF  LAND-HOLDING 

case  (®°).  In  a  document  of  Freising  the  mem- 
bers of  the  ducal  family,  the  Agilofingi,  joined 
together  and  alienated  a  tract  of  uncultivated 
and  waste  land,  which  was  their  undivided  in- 
heritance. They  are  described  as  heredes,  parti- 
cipes,  and  comortcs  in  it.  The  members  of  another 
family,  the  genialoyia  Fagana,  did  likewise  (^^). 
In  a  Westfalian  document  the  shareholders  in 
an  undivided  inheritance  are  described  as  suc- 
cessores  alodii.  In  a  document  of  the  Middle  Rhine 
they  are  called  alodioncs  (^^). 
The  heiv  Tlic  licir  was   always   entitled,  however,  if  he 

for  his  share  was  of  agc,  to  Call  for  a   division  of  the    inher- 
itance at  any  itxince.     He  could  have   his   portion    divided    off 
and  given  to  him  at  any  time.     This  we  know 
from  the  passage  of  the  Burgundian  law   already 
cited, —  ag7'i  quoqiie  communis,  nuUis  termuiis  UmitaU, 
exaequcdioncm   inter   consortcs   nullo   tempore   dcnegan- 
dam  (®^).     Even   a   minor,   provided    his   kinsmen 
had  no  objection,  could  have  his  portion   of  the 
common    inheritance    divided    off    and    given    to 
him.     This  we  know  from  a  passage  of  the  Lom- 
*"        bard    law,    beginning   with    the   words,  si  infans, 
dum   intra   aetaiem   est,   res   cum  fratrihus   aut   cum 
pfarerdihus  suis  dtvidcre  voluerit  (^*). 
Divisions  Sucli  a  division  is  described  in  the  early  for- 

ainong  CO-  t    •   •  7  1'       •  ^  i  i 

heirs.  mula  as   a   divisio   vet  exaequatio   inter  consortes  cle 

alode  (^■'').  We  have  a  reference  in  a  Middle 
Pthine  document  to  such  a  division  in  the  words, 
quantumcunquc   mihl  ohvenit  de  genitore   meo  Pippino, 


AMONG  THE  GERMANS.  33 

qiiod  contra  aUodiones  mcos  recejn  {^^).  In  the  Codex 
S.  Galli  we  meet  with  an  hereditatem,  quam  in 
Liidoltesivilare  in  meam  portlonem  a  coheredihus  ac- 
cej)i  (^^). 

In  the  early  time,  whenever  a  division  of  the  inheritances 

•    1         •  n      1       i»  -i  111        divided 

inheritance    was    called    tor,    it    was,    probably,  among  the 
divided  into  equal  shares,  according  to  the  num-  capUa,Zt 
ber  of  heirs,  one   share  being  assigned   to  each  "'^  ' 
of   them.     The  division    of  the   inheritance    was 
per   capita.     But  when   the   rule    of  equal  di vis- afterwards 
ion    among    sons    had    been    generally   adopted, 
it  was  naturally  argued  that  a  division  in  equal 
shares   among   grandsons  or  great-grandsons  was 
not  lawful,  unless    the    sons    and   grandsons   left 
the    same  number   of  heirs   respectively  and   in- 
dividually.     The   result   was    the    institution    of 
per  stirpes   divisions,    instead    of    the    per   capita 
divisions.     When    an    inheritance    continued   un- 
divided for  several  generations,  but  came  at  last 
to  be  divided,  the  division  was   made    according 
to  descent  and  the  law  of  inheritance  prescribing 
equal   division   among   sons.     It   was  only  when 
the  knowledge  of  genealogical  relationships  was 
lost,    or  a   subject  of   dispute,  that   the    division 
was  made  jjer  capita.     The  evidence  of  this  lies  The  passage 

XT  Tim  r>i  T  OT  T\  77-       -^^^  (''lodis  of 

m  the  Herold  lext  oi  the  Lex  fealica:  De  alodis,  LexS^Uca, 
in  the  clause,  tiM  inter  nepotes  aid  pronepotes,  p)ost  the  Herold 

.  •  Text 

longum  tempus,  de  alode  terrae  contentio  suscitatury  non 
per  stirpes  sed  per  cajnta  dividaniur  (^^). 

The   distribution   of    an    inheritance,   whether 


34  EARLY  HISTORY   OF  LAND-HOLDING- 

Distriini-  made  i^cr  capita  or  per  stirpes,  was  usually  made 
stirpes  v,-Qre  hj  lot.  It  is  sometimes  assumed  that  a  distri- 
byiot.  bution  2^cr  stirpes,  according  to  descent  and  the 
law  of  inheritance  prescribing  equal  division 
among  sons,  would  not  bo  a  distribution  by  lot. 
The  assumption  is  erroneous.  The  fact  that 
there  was  a  distribution  by  lot  is  no  evidence 
to  show  that  the  distribution  was  not  made  per 
stirpes.  Suppose  A,  the  progenitor  of  a  family, 
has  five  sons,  B,  C,  D,  E,  F ;  and  B  has  three  sons, 
G,  H,  I ;  and  G  has  four  sons,  J,  K,  L,  M ;  and  J 
has  two  sons,  N,  0.  O's  share  of  the  family  land 
would  be,  according  to  descent  and  the  law  of 
equal  division  among  sons,  one  half  of  one  fourth 
of  one  third  of  one  fifth  of  the  whole  ;  that  is,  one 
one-hundred-and-twentieth  of  the  whole  (if  we 
may  assume  that  his  brother  and  descendants  of 
his  uncles  and  great-uncles  remain  to  take  their 
shares).  The  division  would  be  made  by  lot,  in 
the  following  manner.  The  fiimily  land,  all  of 
it,  or  a  section  of  it  at  a  time,  would  be  divided 
into  five  equal  parts,  which  would  be  assigned, 
by  lot,  to  the  descendants  of  B,  C,  D,  E,  F, 
respectively.  The  descendants  of  B  Avould  divide 
their  portion,  thus  received,  into  three  equal 
parts,  which  would  be  assigned  by  lot  to  the 
descendants  of  G,  II,  I,  respectively.  The  de- 
scendants of  G  would  divide  their  land,  one 
fifteenth  of  the  family  land,  to  be  assigned  by  lot 
to  the   descendants  of  J,  K,  L,  M,  respectively. 


AMONG  THE  GERMANS.  35 

Then  the  sons  of  J  would  divide  their  share,  one 
sixtieth  of  the  family  land,  into  two  parts,  and 
take  one  apiece,  by  lot  (^^). 

Inheritances  thus  acquired  were  very  properly  SorspcUri. 
described  as  lots,  sorics.  Already  among  the  Lat-  mji^"^  ^^ 
ins  the  w^ord  sors  had  come  to  signify  an  inher- 
itance, rather  than  an  allotment  simply.  The 
reader  will  remember,  perhajDs,  the  definition  of 
Festus  :  sors  patrimonium  signijicat.  The  word  is 
constantly  used  in  this  sense  in  our  early  and 
mediaeval  records  (^°). 

The  word  sors,  and  the  German  word  alod,  sig-  The  sors  and 

.  „   .  ,    ,        . ,  'it  •  '      the  alod. 

nifymg  an  mheritance,  interchange  meanmgs  ni 
the  records.  In  the  formula  already  cited,  which 
dates  before  the  end  of  the  seventh  century,  we 
have  the  dicido  vcl  exaeqiiatio  inter  consortes  de  alode. 
The  word  consortes  is  regularly  used  for  the  word 
coheredes,  the  word  alodlones,  or  the  phrase  siic- 
ccssores  alodii  In  one  of  the  St.  Gall  records  a 
certain  man  alienates  his  inheritance  (^hcrcditas) 
with  the  exception  of  a  certain  part  not  yet 
divided  between  himself  and  the  other  heirs,  — 
quod  cum  consorttbus  meis  adhuc  in  commune  visa  sum 
possidcrc.  Among  the  Burgundians,  Visigoths, 
and  Lombards,  an  inheritance  of  land  was  quite 
regularly  described  as  a  sors,  or  terra  sortis  titulo 
acquisita  (^^). 

In  dividing  an  inheritance  it  was  quite  cus- 
tomary to  divide  the  house  lots  and  arable  lots, 
the  mansi  cum  hnhis,  and  to  leave    the  shares   of 


36 


EARLY  HISTORY  OF  LAND-HOLDING 


subject  to 
division  or 
appropria- 
tion. 


Undivided    the   meaclow,  pasture,  and    forest   undivided,   to 
in  meadow,  be  held  in   common.     We   have    then  p-ata  com- 

pasture,  and  •      /92\  •       m-\\  i  v 

forest  land,  mwua  (""j,  pascua  commiinia  (  "*),  and  a  silva  com- 
munis (^*).  Although  the  undivided  land  was 
thus  described  as  common  land,  property  rights 
in  it  were  very  exactly  defined.  He  who  owned 
an  eighth  part  of  the  arable  land  of  the  vil- 
lage owned  an  eighth  part  of  every  other  kind 
of  land  that  there   was,  and    he    could   have    his 

Undivided  eighth  part  divided  off  and  assigned  to  him  at 
any  time ;  or,  if  he  pleased,  he  could  help  him- 
self to  it.  If  he  did  this,  however,  he  had  to 
be  very  careftd  not  to  take  any  more  than  his 
rightful  share.  We  know  this  from  a  passage 
of  the  Lex  Ripuaria :  si  quis  consortem  simm  qiian- 
iulumcunqiie  superpriserit,  cum  qidndecim  solidis  resti- 
tuat  (^5). 

Rights  of  Rights   of    enjoyment   in    the    undivided    and 

enjoyment  i         i        xi  j 

in  the  undi-  commou   lauds,  the  prata   commuma,  pascua   com- 

vided  land.  .  .,  .  .  ,  ,  - 

7mima,  silva  commimis,  were  either  unregulated, 
or  else  they  were  defined  with  reference  to 
rights  of  property.  They  are  described  as  com- 
munes nsns  cum  aliis,  commuma,  and  eommiiniones  (^^). 
So  long  as  the  right  of  enjoyment  in  the  com- 
mon land  was  unregulated,  every  man  cut  as 
much  grass  as  he  wanted  for  his  animals,  and 
wood  for  building  or  fuel,  and  he  turned  all 
the  animals  that  he  had  into  the  village  pasture. 
Such  an  unlimited  enjoyment  of  the  undivided 
land  lasted,  however,  only  so  long  as  there  was 


Rights  of 
enjoyment 
at  first  un- 
regulated, 
unstinted. 


AMONG  THE  GERMANS.  37 

more   than  enough  grass,  wood,  and  pasture  for  Such  rights 
everybody.     We  have  seen  how  every  man  could  dtiined, 
have  his  share  of  the  undivided  hind  marked  off  time  went 
and  given  to  him  at  any  time.     When,  therefore,  °"" 
disputes  arose  in  regard  to  rights  of  enjoyment, 
the    land   was    divided,  or    eLse   the    rights    were 
defined.     This   was    easily    done.     If    there    was 
grass   land    enough    to    produce    eighty  loads   of 
hay,  he  who   owned  an   eighth   part  of  the   land  stinted 
was  allowed,  he  or  his  servants,  to  cut  and  carry 
off   ten  loads,  and  no  more.     In  a  document  of 
Wirtemberg   we    meet    with    a   pratum   carronmi 
quinque,  quod  cum  consortibus  mcis  adhuc  in  commune 
visa  sum  possiderc  (^^).     If  there  was  pasture  land  stinted 
enough  for   one   hundred  and   sixty   animals,   he 
who  owned  an  eighth  part  of  it  was  allowed   to 
turn  out  twenty,  —  no  more.     In  a  Weissenburg 
record,   for    example,    we   meet   with    a    pasture 
right  for  fifty   hogs,  —  pasturam  ad  L  porcos.     In 
an  early  English  record  we    have   an   lxx  porcis 
saginam  in  commone  silvatica  (^^). 

The  shares  of  the  silva  communis,  being  proper-  The  sUva 
tioned  to  shares  of  land  held  in  severalty,  could  of  the  eady 
be  determined   at  any  time.     He  who  owned  an  ^'^^^ 
eighth  part  of  the  arable  land   owned  an  eighth 
part  of   the  silva   communis.     Inheritances  of  ara- 
ble  land   being    divided    and  subdivided,  inherit- 
ances of  the  silva  communis  were  divided  and  sub- 
divided  also ;    and    when   inheritances   of    arable 
land  came  to  be  alienated,  a  ^;ro  rata  share  of  the 

93390 


38  EARLY  HISTORY  OF  LAND-HOLDING 

silva  communis  went  with  every  one.     It  is  a  great 
mistake,  therefore,  to  speak  of  the  silva  communis 
of  the  early  records  as  land  owned  collectively  or 
commimistically.     The  silca  communis  was   simply 
undivided   property,  regidarly    an    undivided  in- 
itwasowned  lieritancc.     The  ownership  of  it  was  not  vested 
ly,  not  col-   in  the    shareholders,  the    heirs,   collectively,    but 
nwcommu-  distributively.     This  is  evident,  not  only  from  the 
lusticu  y.     pj^ggr^gQs    Qf    i\^Q    Burgundian   law    cited    above, 
but  from  many  passages  in  the  documents.    There 
Cases  in       is   a    good    example    in    the   Lauresham    Codex, 
"vvhere   we    hnd   an  undivided  share  of  the  silva 
communis  described  in  the  following^  terms :  de  ilia 
silva  communis  quantum  jure  hereditario   ad  me  per- 
tinere  videtur.     So  in  the  Codex  S.  Galli,  a  certain 
man   alienates  de   communi  silva,  quantum   ad  por- 
tioncm  nostram  pertinet.     In  a  Westfalian  document 
we  meet  with  a  certain  estate  described  as  con- 
sisting of  mansos  duos  cum  terris  cultis  ct  incuUis,  et 
silvis  communibus  ad  cosdcm  mansos  pertinentihus  (^^). 
It  is  clear  that  the  silva  communis  did  not  belong 
to  the  community.     It  belonged  to  the  members 
of  the  community.     They  owned  it  in  undivided 
shares;    and    these    shares   were    hereditary    and 
then  alienable. 
Alienation         Very  often   the  land-owner  did  not  know  how 
the^iVw^"  much   of   the    common  forest   belonged    to   him. 
equivSeSs   It  was  uot  always  easy  to  make  the   calculation. 
He  knew,  however,  that  a  certain   share  was  his, 
and  at  his  disposal.     In  several  of  the  Freising 


bein<?  un- 
known. 


AMONG  THE  GERMANS.  39 

records  we  read  how  the  shares  of  land  held 
in  common  with  those  of  other  men  could  not  be 
exactly  estimated,  nor  particularly  described, — 
quod  commune  est  cum  aliis,  numenmi  non  jiossumus 
compuiare.  Nevertheless  the  shares  were  divisible 
by  inheritance  and  alienable.  One  man  alienates 
what  he  believes  to  be  an  ample  share,  —  de  silva 
in  commune  cum  aliis  Jiahundanier.  Another  man 
alienates  a  maximum  partem  dc  silva  optima  com- 
mtinem  cum  ceteris  nohilibus  tins  {^^). 

Holding  in  common  and  communistic  holding  Holding  in 
must  be  carefully  distinguished.     They  are  very  to  becUstin- 
difFerent   things.     We   have    plenty    of    holding  from^com- 
in    common   described   in   the  early  records,  but  Holding'^ 
no   communistic   holding.      Cases  of  this  may,  of 
course,  be  adduced   from  the  later  records;   mod- 
ern instances  may  be  cited;    but  with  these  we 
are  not  at  all  concerned.     No   cases   of  commu- 
nistic holding  have    as   yet  been    adduced   from 
records  of  the  early  period. 

Without  doubt  a  great  deal  of  undivided  prop-  How  com- 
erty  was  converted  into  common  property  during  holding  was 
the  middle  ages.     Rules  and   regulations   had  to  HI  iatVi' " 
be   made   in    regard    to   rights  of   enjoyment   in  ^^'^^' 
the  undivided  land.     The  rules   and   regulations 
were  made  in  assemblies  of  the  shareholders  ;  and 
under  this  condition  of  things,   when    the    claim 
of   the    individual  was   opposed  to   the  interests 
of    his   associates,    it   was   made    null    and    void. 
The  will  of  the  best  men  in   the  assembly,  or  a 


40  EARLY  HISTORY  OF  LAND-HOLDING 

majority,  was  law.  The  rights  of  the  individual 
shareholders  were  thus  usurped  by  the  share- 
holders as  a  body.  The  property  of  the  indi- 
vidual became  the  proj)erty  of  the  corporation. 
In  the  place  of  a  voluntary  association  of  land- 
owners we  have  a  land-owning  corporation.  The 
Theuniversiimiversi  became   a   imiversitas  (^°^).      In    this    way 

DGCfliTTlG  d. 

universitas.  collcctive,  and  cvcu  communistic,  holding  of  land 
came  into  existence.  Cases  are  rare,  however, 
before  the  twelfth  century.  They  are  common 
only  after  the  thirteenth. 

These    cases    from    the    later    centuries    have 
been  adduced,  and   modern  instances  have  been 

The  theory   cited  (^°-),  as   evidence    to    support   a   theory   of 

of  primitive         .      .\     ^  .  \r  ,  .   ,  . 

commu-  prnnitive  communism ;  according  to  which,  pri- 
vate property  has  been  derived  from  the  disen- 
tanglement of  individual  from  collective  rights ; 
the  rights  of  the  family  from  those  of  the  clan  ; 
the    riohts  of    the   individual  from  those  of  the 

o 

The  theory   family.     We    hold   a  theory    which  is   quite   the 

of  individual  .  it 

property  to  reversc  of  this.     We  believe   that   j)i"i^'ate  prop- 

be  j)rGrGrrccl. 

'  erty  existed  first ;  that  common  property  came 
into  existence  afterwards,  in  consequence  of  an 
entanglement  of  individual  rights  and  gradual 
anniliilation  of  them :  and  this  theory  is,  we  be- 
lieve, supported  by  the  concurrent  testimony  of 
the  early  records.  From  these  it  is  evident  that 
the  principle  of  individual  property  was  domi- 
nant everywhere.  Those  who  hold  to  the  theory 
of  primitive  communism  cannot  have  read  these 


AMONG  THE  GERMANS.  41 

records  with  sufficient  care,  if,  indeed,  they  have 
read  them  at  all. 

Even  the  roads  and  ways,  in  which  every  man  Ownership 
walked,  were  regarded  rather  as  undivided  than  and  ways, 
as  common  property,  in  the  early  time.  The 
ownership  therein  was  distributed  among  neigh- 
boring land-owners.  It  was  transmitted  by  inher- 
itance, and  divided  and  subdivided.  Then  when 
inheritances  came  to  be  alienated,  undivided 
shares  in  the  roads  and  ways  were  alienated  also. 
In  one  of  the  Lauresham  records,  two  brothers 
alienate  all  their  property,  except  a  piece  of 
newly  cleared  land  (siirpo)  and  a  road  [via). 
When  these  brothers  died,  this  road  must  have 
passed  to  their  descendants  as  an  undivided  in- 
heritance. In  describing  his  property,  the  land- 
owner very  often  mentioned  the  roads  and  ways 
of  which  he  was  part  owner,  — viis  ct  inviis,  exitibus 
et  rcdilihus  (^"•'^j. 

At   the    time    when    the    undivided    land   was 
subject    to    ad    liUium    appropriation,    when   the 
heirs    in     an    undivided    inheritance    made    com- 
prehemioncs   hi    communio    ^;ranw26>r2/;»,    they   some- 
times   appropriated    pieces    of   land    out   of   the  Appropria- 
public   roads  or  by-ways.     We  read,  in  the  Bur-  rlmas'aur 
gundian   law,   that    the    possession   or   ownership  ^^'''^^' 
of  the    roads    in  which   wagons  and   carts   were 
wont  to  pass  could  be  lost    or   acquired    by  oc- 
cupation during  two  years  (^°*). 

This    condition   of   things    did    not,  however. 


42  EARLY  HISTORY  OF  LAND-HOLDING 

How  the      endure  long.     The    .appropriation   of    the    public 

roads  and  ,.,,.,, 

ways  became  ways  by  individiials  was  an  annoyance  to  every- 
of  theToui-^  body,    and    the    question   was   raised  whether   it 
munity.       gi^ould  be  allowed  or  not ;    and  in  answer  to  this 
question  it  was  decided,   that   he  who    appropri- 
ated the   roadways   and    closed  them  up  should 
withdraw  at  once  and  take  away  his  enclosures. 
Fines  were  imposed  as  a  penalty  for  the  offence. 
If  the  land  appropriated  lay  upon  the   highway, 
the    fine    was   heavy.     If  it   lay    upon  neighbor- 
hood   roads,   the   fine  was  light  (^°^).      Thus   the 
ownership   of    the    roads   and    ways    was    taken 
away  from  individuals,  and  vested  in  the  various 
communities  of  which  they   were  members. 
Rights  to  AYhat  has  been  said  in  regard  to  public  roads 

aquisaqua-  aud  ways  is  truc  also  of  water,  whether  still  or 

T'tLTIX'VC  cLC' 

cursibus.  in  running  streams.  Rights  to  water  were  not 
distributed  by  the  community  to  its  members, 
but  passed  with  the  land  from  father  to  sons,  — 
pe?'  stirpes  ct  jure  hereditario.  They  were  alien- 
ated with  the  land.  With  every  inheritance  or 
acquisition  of  land  came  a  jwo  rata  right  of  en- 
joyment in  aquis  aquarumve  decursilms.  The  phrase 
occurs  regularly  in  descriptions  of  property. 

When  there  was  plenty  of  water,  the  right 
of  enjoyment  was  unregulated ;  but  in  certain 
cases,  especially  where  the  water  was  needed  for 
irrigation,  the  supply  must  have  been  limited. 
An  agreement  was  probably  made  in  such  cases, 
according  to  which  the    associate    owners  of  the 


AMONG  THE   GERMANS.  43 

water  took  the  flow  of  it  during  certain  periods 
of  time,  determined  by  their  respective  rights 
of  property.  This  is  a  practice  not  unknown 
in  our  own  time  (^'^*^). 

We  read  in  the  Burgundian  law  Q^"^),  that  the  Ownership 

,  .  ^  .  lit  of  a  running 

ownership    oi    a   running    stream    couki    be    ac-  stream  ac- 
quired   by    an    exckisive    enjoyment    during   two  prescription. 
years,  so   that   the   previous   owner   would  have 
no  further  rici-ht  in  it. 

A  well  was  owned  either  in  severalty  or  in  AVeiis. 
common.  When  it  was  owned  in  severalty  and 
was  polluted,  he  who  had  polluted  it  had  to 
pay  a  fine  to  the  proprietor,  besides  clearing  the 
well  and  making  it  clean  and  pure  as  before. 
When  the  well  was  owned  in  common  (rsi  aidem  flu- 
rimorum  in  vicinia  pidens  fiieril)  and  it  was  j)olluted, 
he  who  polluted  it  had  to  make  it  clean  and  pure 
again,  and  pay  the  fine ;  and  this  fine  was  divid- 
ed among  the  owners  of  the  well,  each  one  re- 
ceiving his  share  [compositionem  inter  se  mvUcntiir). 
The  well  was  owned  in  common,  but  not  com- 
munistically.  The  ownership  was  vested  distribu- 
tively,  not  collectively  {^^^).  We  have  searched 
in  vain  through  the  early  records  for  a  refer- 
ence to  water  rights  being  held  by  the  com- 
munity to  be  distributed  among  the  members  in 
usufruct.  If  a  pond  of  water,  a  stream,  or  a  well 
was  not  owned  in  severalty,  it  was  owned  in  un- 
divided shares,  which  were  regarded  as  private 
property,  and  were  hereditary  and  alienable. 


44 


EARLY   HISTORY   OF   LAND-HOLDING 


Houses 
owned  in 
shares. 


Mills  owned 
in  shares. 


Many  indivisible  things  were  held  in  this  way, 
in  shares.  Dwelling-houses  were  constantly  held 
in  shares,  and  the  shares  were  alienable.  In  one 
of  the  Lauresham  records,  for  example,  we  have 
alienated  a  third  part  of  a  house  :  teriia  imrte  de  ilia 
curticclla,  quicquid  nostra  pari  to  ihklcm  habere  videamur. 
Many  other  examples  might  be  adduced  (^*^^). 

The  same  thing  is  true  of  mills :  they  could 
not  be  divided  without  being  destroyed,  so  they 
were  owned  in  shares,  which  were  transmissi- 
ble and  divisible  by  inheritance,  and  alienable. 
In  one  of  the  Salem  records  we  meet  with  a 
The  commw-  commimitas  vol  patrimonium  in  molendlno.     It  is  very 

nitasvelpa-   .  .  -t  ^  ^  i 

trimonium.  mtcrcstmg  to  obscrvc  here  how  the  words 
communitas  and  patrimonium  interchange  mean- 
ings (11^). 

So  it  was  with  churches,  as  soon  as  churches 
were  built.  They  could  not  be  divided  among 
the  descendants  of  the  founder,  so  they  were 
held  in  undivided  shares, — 2^^'"'  ^i^i'P^^  et  jure  he- 
reditaria,—  and  the  shares  were  alienable.  In  one 
of  the  Fulda  records  half  of  a  church  is  alien- 
ated, —  diniidiam  partem  ecclesiae  quae  mihi  ibidem 
in  heredilafcm  convcnit.  In  a  document  of  Freising 
the  coheirs  in  a  certain  church  fell  to  quarrelling 
in  regard  to  their  several  rights  of  property,  — 
coheredes  conteniionem  inter  se  p)ro  ipsam  ecclesiani  lia- 
huerunt.  In  the  Capitulary  of  Worms,  of  the 
year  829,  we  have  a  passage  entitled,  Dc  ccclesiis 
inter  coheredes  dicisis  ("■^). 


Churches 
owned  in 
shares. 


AMONG  THE   GERMANS.  45 

When  two  or  more   persons  inherited  a  slave,  a  slave 

1  Ti  1  111-  iT'-i  1       owned  in 

the  J  did  not  always  sell  linn  and  divide  the  shares. 
proceeds.  They  often  kept  him  and  held  him 
in  undivided  shares,  the  shares  being  transmitted 
to  descendants  and  alienable,  as  long  as  he  lived. 
The  owners  had  his  services  during  periods  of  time 
proportionate  with  their  several  rights  of  property, 
or  else  they  shared  the  proceeds  of  his  labor  (•'^-). 

The  right  to  hunt  in  the  undivided  and  com-  Hunting. 
mon  forest  was  an  hereditary  right.  It  was 
divisible  hy  inheritance,  and  alienable  in  fractions. 
We  read  in  the  Breves  Notitios  Salsburtrenses 
that  Madelhelm,  a  certain  nobleman,  alienated 
his  portion  of  the  hunting  at  Albina,  which  he 
held  in  common  w^ith  his  kinsmen  and  coheirs, — 
poriio  veimtionis  communis  cum  cohacrcdlhus  {^^^).  The 
right  to  fish,  the  lyhcaiio  or  piscatura,  was  heredi-  Fishing. 
tary  in  the  same  way,  and  alienable  in  fractions. 
In  a  Lauresham  record,  for  example,  we  have  an 
undivided  share  of  the  fishing  in  Edingero  marca 
given  to  the  church  of  St.  Nazarius,  — poriio  nostra 
de  piscatura  i}^^).  Rights  to  hunt  and  fish  were 
through  the  early  period  unregulated.  Every- 
body hunted  and  fished  ad  lihitum.  But  as  the 
hunters  and  fishermen  increased  in  numbers,  and 
game  or  fish  became  scarce,  quarrels  arose,  and 
it  became  necessary  to  define  every  man's  right,  How  rights 

1         L       ^•      •  L    i-\  PI  ;•'  ^     I-    ^•  to  hunt  and 

or  else  to  liinit  the  season  oi  hunting  and  lislimg.  iish  were 
Various  rules  were  adopted  by  which  conflicting'""''' 
rights  were  reconciled.     We  remember  a  case  in 


46  EARLY   HISTORY  OF  LAND-HOLDING 

Avhich  a  certain  man  was  permitted  to  fish  at 
a  certain  place  for  two  weeks  at  Christmas  ("^). 
It  might  have  been  four  weeks  at  Easter.  In 
this  way  the  right  of  the  individual  could  be  de- 
lined  and  limited,  and  inequalities  maintained. 

The  German  family  and  the  clan  which  grew 
out  of    it    was   not,   properly    speaking,  a    land- 
Tho  family    owuiiig  corporatiou.      It  was  simply  a  group  of 
fined.  heirs,  with  a  partly  divided,  partly  undivided  in- 

heritance in  the  land  and  the  things  on  the 
land  C^'). 

The  iamily  or  clan  village  is  commonly  described 
as  a  riiia ;  but  this  word  is  used  to  describe  the 
isolated  farmstead  and  the  colony  of  serfs  as 
well.  The  family  or  clan  village  is  described 
specifically  by  the  word  genealogia.  A  man  was 
The  vicnH  ct  Said  to  livo  in  a  certain  genealogia,  —  in  vico  et 
genealogia  nhi  rivolus  ille  intrat  in  ilium  fliimen,  for 
examjole  (""). 

Looking  over  the  modern  map  of  England,  we 

find   many    hundred  names  of  places   containing 

the  syllable  ing,  —  Basing   in   Hants,  Cocking  in 

Sussex,  Dorking  in  Surrey,  Gilling  in  Yorkshire, 

Eeading  in  Berks,  for  examples.     Most  of  these 

Evidpiices  of  places  must  have  been,  in  early  times,  family  or 

ofiainiiy  and  clan  Villages ;    for   the    syllable  lug  in    the    early 

ill  Engiai?(L^  Euglisli    language    is    patronymical,  and  signifies 

the  son  of,   the   descendant  of,  the  issue    of,  the 

stock  of     Thus  the  name    Elfimj^as  refers  us    to 

the    sons   or  descendants   of  Elf,  and    the    name 


AMONG   THE   GERMANS.  47 

Totingas  refers  us  to  the  sons  or  descendants 
of  Tot,  whoever  he  was.  A  village  was  called 
Elfmgas  because  the  Elfings,  the  descendants  of  Patronym- 

T  n     1    m      •  1  ''^'^'  names 

Elf,  lived  in  it.  It  was  called  Totingas  because  of  i-iaccs. 
the  Totings,  the  descendants  of  Tot,  lived  in  it. 
A  great  many  such  local  names  have  been  col- 
lected out  of  the  early  charters  ("^).  Many 
of  these  family  or  clan  villages  are  further  de- 
scribed  as  hams,  i.  e.  homes,  or  tuns,  i.  e.  enclosed  The /^aww 

^  ...  ,  aiid/ims,iso- 

larmsteads,  afterwards  villages,  then  towns, — ktedfarm- 
Buckingham  in  Bucks,  for  example,  and  Abington  r„st,  then 
in  Cambridgeshire.  Buckingham  was  probably, '^'^"^^  ''^*'^' 
in  its  orig:in,  the  home  of  the  descendants  of 
Buck,  and  Abington  must  have  been  the  enclosed 
farmstead,  then  the  village,  then  the  town  of  the 
progeny  of  Ab.  In  regard  to  single  examples  it 
is  easy  to  fill  into  error ;  but  in  general  the  ar- 
gument is  sound.  We  have  mentioned,  in  the 
laws  of  Ethelbert,  a  man's  ham.  If  his  name 
was  Aes,  and  he  left  sons,  they  would  be  de- 
scribed as  Aesingas,  and  their  residence  would 
be  Aesingham.  In  the  same  laws  we  have  men- 
tioned a  man's  tun  ("^).  If  the  man's  name  was 
Aes,  again,  his  sons  would  be  Aesingas,  and  their 
place  of  residence  would  be  Aesingtun  or  Aesing- 
ton.  The  names  of  first  proprietors  were  in  this 
way  perpetuated.  We  have  first  the  isolated 
farmstead,  and  then  the  family  or  clan  village 
growing  out  of  it. 

Many  vestiges  of  these  early  settlements  —  first 


48  EARLY  HISTORY  OF  LAXD-HOLDING 

Similar  ovi-  isolated  farmsteads,  then  family  or  clan  villages  — 

dence  for  the  i        r  i    •        r^  •  t  -i  -i 

existence  of  may  bc  loimd  HI  Contmental  records  and  on  Con- 

claii  villages    ,.  ,1  x  tioi 

ui)ou  the  tmentai  maps.  Long  lists  of  the  names  of  places 
containing  the  patronymical  syllable  iiir/,  or  w?^«, 
have  been  collected  from  these    sources  (^-°). 

A  good  deal  of  surprise  has  been  expressed 
that  the  same  patronymical  name  should  be  found 
in  different  places ;  as  if,  so  it  has  been  argued, 
branches  of  the  same  family  were  established  in 
different  places.  It  should  be  remembered,  how- 
ever, that  the  names  to  which  the  patronymical 
syllable  is  affixed  are  personal  names,  —  names 
like  John,  James,  and  Henry ;  they  are  not  fam- 
ily names :  so  we  have  no  more  right  to  argue 
that  the  Bassings  of  Bassingbourn,  Bassingfield, 
Bassingham,  Bassingthorpe,  Bassington,  were  one 
family  scattered  in  various  localities,  than  we  have 
to  argue  that  the  sons  of  men  named  John  are 
all  related  to  one  another  as  a  large  and  widely 
scattered  family  (^-^). 

Theso-caiied  Amoug  the  Franks,  from  the  time  of  the  Lex 
icimug  .  gj^j-^^  until  the  end  of  the  sixth  century,  if  a 
man  died  without  sons,  his  land  passed  to  his 
neighbors.  The  fact  may  be  inferred  from  a 
passage  of  the  edict  of  Chilperic,  which  dates 
between  the  j-ears  573  and  575.  According  to 
this  edict,  the  right  of  inheritance  in  land  was 
conceded,  —  1st,  to  sons  {siciit  et  Lex  Salica  hahet)  ; 
2d,  to  daughters ;  3d,  to  brothers ;  4th,  to  sis- 
ters ;  to  the  express  exclusion  of  the  neighbors, 


AMONG  THE   GERilAXS.  49 

vieini  i^~).     That  is  to   say,  Avlien  there  were   nowhontLere 

,  !•  1     ^  A^  '11  /•••\  iii       were  no  oth- 

other  heirs  at  law,  the  neiglibors  [vicim)  took  the  er  heirs,  the 

.    ,        .  neij^libors 

inheritance.  took  the  m- 

The  question  arises,  liow  did  they  take  it,  —  col- 
lectively, as   a  body  corporate,  or  distributively.  Did  tiiey 

.  .  tal<o  it  col- 

as an  assemblage  ot  heirs,     it  is  usually  assumed  kctiveiy,  or 

that  they  took  the  land  collectively.    The  assump-  tivuiy  ? 

tion  is  an  arbitrary  one,  and  it  is  erroneous.     The 

evidence  goes    to    show    that  the    vicini  received  They  took  it 

Tf»i'  'T-i-i       (listiibutive- 

the  land  as  a  body  of  heirs,  that  is  distributively.  ly,  like  other 
They  had  it  to  divide  among  themselves.  They 
took  it  and  divided  it,  and  each  man  received 
a  share,  which  he  added  to  his  other  property. 
When  it  was  not  divided  at  once,  it  was  still 
divisible,  wdien  any  one  called  for  a  division. 
The  law  recrardiniir  common  land  in  which  it  is 
said  to  be  divisible  at  any  time  among  the  share- 
holders has  been  already  cited,  but  must  be  cited 
again  in  this  connection  :  Agri  qiioque  communis  miUls  The  evidence 

,.,.,.  .  .  ofthis 

tenmms  limitati  exaequahonem  inter  consortes  niiUo  tern-  summed  up. 
jwre  denerjandam.  Nor  must  we  forget  the  formula 
in  which  a  division  of  this  kind  is  described,  the 
divisio  vel  exaeqiiatio  inter  consortes  dc  alode  ;  and  how 
every  man  received  his  share,  —  unicuique  ex  ipsis 
dchila  iiortloncm  terminetiir  (^-^).  We  have  reference, 
in  several  passages  of  the  Visigothic  law,  to  the 
divisions  of  land  Avliich  took  place  among  the 
vicini.  They  are  described  as  permanent  divis- 
ions. No  subsequent  redistributions  were  thought 
of;  —  quod  a  parcniihus  vel  vicinis  divisum  est  ])os- 


60 


EARLY  HISTORY  OF  LAXD-TIOLDIXG 


considered. 


teritas  immuiare  non  ientet.  References  to  divisions 
of  land  amono;  kinsmen  and  neiorhbors  are  com- 
mon  in  the  documents  (^-*).  From  such  evidence 
we  know  that  when  a  man  died  without  heirs 
at  law,  and  his  property  passed  to  his  neighbors, 
they  received  it  distributively,  as  a  group  of  heirs. 
It  was  an  inheritance  to  be  divided  among  them, 
at  once,  or  at  some  time  or  other,  whenever  a 
division  was  called  for. 
TheDeMi-  Now  we  must  cousidcr  the  famous  passage,  De 
\\cxiJt{c^  Migrantibus,  of  the  Lex  Salica  (^^^) ;  which  is  quite 
conclusive  evidence,  in  itself,  to  show  that  the 
vicini  owned  their  lands  distributively,  as  a  group 
of  proprietors,  and  not  collectively,  as  a  body 
corporate.  We  read,  that  if  any  one  desired  to 
settle  in  a  village  upon  any  man's  land  there 
{super  altcrum),  he  might  do  so,  provided  nobody 
objected. 

The  owner  of  the  land  upon  which  the  mi- 
grans  proposed  to  settle  was  of  course  likely 
to  object,  and  if  he  did  the  migrans  had  to  go 
away.  But  we  read  that  if  any  one  or  another 
resident  in  the  villa  objected  to  the  settlement 
of  the  migrans,  he  had  to  go  away.  The  inquiry 
naturally  suggests  itself:  Why  should  any  one 
stand  in  the  way  of  the  migrans,  except  the  owner 
of  the  land  which  he  proposed  to  appropriate  ? 

Referring  to  the  principle  of  inheritance,  al- 
ready described,  we  find  the  explanation  of  this 
anomaly.     If  a  man   died,  his  land   went  to   his 


A  curious 
feature  of 
the  law. 


The  expla- 
nation. 


AMONG  THE   GERMANS.  51 

sons.  If  he  had  no  sons,  it  passed  to  the 
neighbors.  That  is  the  reason  why  the  neigh- 
bors had  a  right  to  prevent  the  entrance  of 
the  mir/rans  into  the  viHage,  even  when  he 
did  not  propose  to  settle  on  their  lands.  They 
objected  to  the  settlement  of  the  migrans,  al- 
though it  was  super  alieriim,  because  they  were 
potential  proprietors  of  alter  s  land.  The  objec- 
tion was  admitted  to  be  valid. 

But  the    question   arises,   Why  should   one    of -"^"ot^,^^ '''"■ 

^  .  nous  feature 

the  vicini  (iimis  vel  aliqui)  have  the  right  to  pre- "''  ti^e  law. 
vent  the  settlement  of  the  migrans?  We  read 
in  the  law  that,  though  only  one  man  objected, 
the  migrans  had  to  go  away.  We  read  that,  if 
nobody  (niiUus)  objected,  ho  might  remain.  The 
explanation  is,  that  every  resident  in  the  villa  ]*;-^piana- 
would,  if  the  owner  of  the  land  which  the  migrans 
proposed  to  occupy  died  without  sons,  come  in 
for  a  share  of  that  land.  The  land  Avould  be  divis- 
ible among  all  the  vicini,  and  each  one  would  come 
in  for  a  share  of  it.  The  village  landholder  was 
not  only  [)roprietor  of  the  lands  in  his  possession, 
but  potential  proprietor  of  all  other  lands,  and 
in  virtue  of  this  potential  proprietorship  he  could 
control  the  action  of  the  community  in  regard 
to  the  admission  of  strano-ers  into  the  villafj-e. 
In  this  matter  it  was  not  the  community  which 
controlled  the  individual,  it  was  the  individual 
who  controlled  tlie  communitv.  Far  from  beinG: 
evidence   of  community  of  land   the   passage  De 


52  EARLY  HISTORY  OF  LAND-HOLDING 

Theprinci-   Migrantihus,  in  the  Lex  Saliea,  is  very  good  evi- 
viduiii  prop-  deuce   to  show   that   the    principle  of   individual 
tolifrfait    property  was  pushed  to  the  very  last  point. 
^'"'"  ■  An  inquiry  here  suggests  itself,  —  In  what  way 

Origin  of  the  did  the  neighbors  {yicini)  come  into  the  right  of 
°   '  succession  which  v/e  have  been  describhio;  ?     The 
question  is  easily  answered.     We   have    already 
learned  how,  when  a  territory  was  first  occupied, 
the  people   did  not  settle  in  towns,  nor  even  in 
villages,   but  in   isolated   farmsteads.     When  the 
first  settlers  died,  their  sons   succeeded   to   their 
places,  and,  after   the    sons,  the  sons'  sons   and 
their  descendants.     New  houses  were  built  round 
the  original  farmsteads,  and  we  have,  instead  of 
these  farmsteads,  clan  villages  [vici  vcl  genealogiae) ; 
associations  of  heirs  with  partly   divided,  partly 
undivided  inheritances  of  the  land.     The  inhab- 
itants of  the    clan  village  were  kinsmen,  descend- 
ants and  heirs  of  the  founder  of  the  village.     It 
was   natural,   therefore,  that  Avlien    any   villager 
died  without  sons  his  land  should  pass  to  the  other 
ihcvicini    villagers.     They  were  the  surviving  descendants 
vivingrepre-  and  hcirs.     At  any  rate  they  found  themselves  in 
andhnirsof  posscssiou  of  tlic  land,  aud  nobody  had  any  better 
of'the'vii-'^  title  to  it.     It  was  an  inheritance  for  them,  —  an 
^f'    ,.      undivided   inheritance.     There  was  no  other  de- 

The  undi- 
vided inher-  scription  for  undivided  land.     In  tlie  early  time, 

itance  of  the  ^ 

vicini.  as  WO  liavo  sccu,  tlio  individual  was  at  liberty  to 
jecHoap-  appropriate  as  much  of  the  undivided  inheritance 
atTi'f '''"    ^^  lie  pleased,  provided  he  did  not,  in  so  doing. 


AMONG  THE  GEKMANS.  53 

trespass  upon  land  already  appropriated.  The 
inheritance  of  the  villager  who  died  without  sons 
was,  at  first,  subject  to  appropriation  by  the  other 
villagers.      After  a  while,  however,  as   we    have  Systematic 

.  divisions  in- 

also  already  seen,  the  question  arose,  how  much  tioduced 

-,,  ..^  ,,  .  afterwards. 

01  the  undivided  land  could  one  man  appropriate, 
and  the  rule  was  then  adopted  that  the  shares 
of  meadow,  forest,  and  pasture  land  should  be 
in  proportion  to  severalties  of  arable  land  already 
established.  After  that,  wdien  a  man  died  without 
sons,  his  arable  land  was  regularly  divided  among 
his  neighbors,  and  with  every  share  of  this  was 
associated  a  pro  rata  share  of  his  other  lands, 
meadow,  pasture,  and  forest,  —  a  fro  rata  share 
which  the  owner  could  have  separated  from  the 
shares  of  his  neighbors  and  assigned  to  him  when- 
ever he  pleased.  It  was  often,  however,  left  in 
common  i^"^^). 

Tlie  primitive  rule  of  inheritance  prescribed  an  The  mie  of 

,     ,.     .    .  .„     ,  e.iualdivis- 

equal  division  among  sons  ;  or,  it  there  were  no  ion  among 

, .     .    .  ,  .  ,  '11  sons,  or 

sons,  a  division  among  kinsmen    and    neighbors,  neighbors  if 
without   discrimination.     Other   rules  of   inherit-  no^sons! 
ance  appear  to  have  been  derived  from  this  one.  Exclusion  of 
by  a   substitution   of  kinsmen   to    the    exclusion  i^orsraf^" 
of  neighbors,  as  such,  and  by  a  discrimination  of  ^^^'^  ' 
different  deojrees  of  proximity;  so  that  the  inher- ^^^'^r*,^""/*^ 

'-'  ^  ^   '  the  rule  that 

itance  passed  to  the  nearest  kinsmen  to  the  ex-  <''^'  i"i'fiit- 

•^  ance  must 

elusion  of  those  who  were  more  distant.     In  the  g"  to  the 

nearest  kins- 
law  of    the   Angli  and   Werini,  for   example,  the  "hmi,  to  the 

.  .  ...         ex(dusiou  of 

inheritance   of   the    sons,   the    inheritance    which  others. 


64  EARLY  HISTORY  OF  LAND-HOLDING 

the   sons   would    have  received,  had    there  been 
any  sons,  passed   to    the    male    relatives    on    the 
father's   side,  in    the    order   of   their   proximity: 
The  law  of    dd  proximiim  paternae  generatwnis  consanguinium  per- 
andWmui,  ^^>^^^^  ....  UBCfie   cid  quhilam  r/enerationem  patcrna 
(jeneraiio  siiccedat  (^^").     As  among  the  Angli  and 
Tiie  Loin-     Werini,  so    among  the    Lombards   the    neighbors 
succeeded   only    when  they   were    also    kinsmen, 
and  they  succeeded  by  classes,  ^j<;'r  cjradum  et  pa- 
reiMam  (^"'^).     Though  we  may  not  know  precisely 
what    is   meant   by   this   phrase,  it   indicates,  of 
course,  a  classification  of  collateral  heirs.     When 
The  niie  of  a  man  died  without  sons,  the  neighbors,  as  such, 
ion  among    had    no    longcr    any   right    of    inheritance    from 
nearest  kins- him.     Only  tliosc  pcrsous  wlio  wcrc  kinsmen  had 
wore  no  ^'^^^  this  right ;  and  these  kinsmen  no  longer  took  the 
sons.  inheritance   one  and  all  indiscriminately.      They 

were  distributed  in  classes,  and  took  the  inherit- 
ance in  order,  one  class  after  another,  according 
to  proximity.  If  there  were  no  rej)resentatives 
of  the  first  class,  the  inheritance  passed  to  the 
second  ;  if  there  were  no  representatives  of  the 
second,  it  passed  to  the  third ;  and  so  on. 
Alienations       In  tliis  councction  it  is  interesting  to  note  the 

lequircd,  at    «      ,      ,,      ,         ,  .    ,  .  ,  ,  .,■■ 

first,  the      lact,  that,  when  a  proprietor  m  the   clan  village 

kinsmen  and  proposed  to  alicnatc  liis  land  to  an  outsider,  he 

ueigi  ois.     ^^^^    obliged,   until    the    right  of   alienation    was 

established    by    general    consent,  to    obtain    the 

approval,    not   only    of    his    sons,  who   were    his 

direct  heirs,  but  that  of  his  kinsmen  and  neigh- 


AMONG  THE   GERMANS.  55 

bors   also,  •who  were   only   potential  heirs,  so   to 
speak.     In  one  of  the  Freising  documents  a  cor- Exampios  in 
tain    man    named    Wolfer   comes    to  alienate   his  of  tins. 
homestead  and  lands,  with  a  crowd  of  his  rela- 
tives,  cum  iiroxhnorwn   iunna.     In    another   docu- 
ment the  proximi  ei  vicini   appear.      In    another, 
the   conmar\cani\  ei  coheredes.     In  one  of  the  rec- 
ords of  the  monastery  of  Scheftlar  the  grantor 
is    asked,    in    the    presence    of   all    the    kinsmen, 
coram  omnibus  coheredibus ;  si  cdiquis  eonim  coniradi- 
cere  voluissct.     As  no  one  objected,  the  grant  was 
made,  — joarentibus  enim  ixiri  dcvotione  consentient ibus. 
Other   examples    might   be    adduced  (^^^).     It   is 
often    argued    that,   inasmuch    as    alienations    re-  Tho  custom 
quired,  in    this   way,  the    consent  of  the    neigh-  deiue  for 

,  1     ^  '  ,^  ,     ^  i  community 

bors    and    kinsmen,   there   must  have   been   com-  of  kud. 
munity    of    land    among    them.       This    does   not 
follow.     The  neighbors  and  kinsmen  were  heirs ; 
that  is  the  reason  why  their  consent  was  required. 
They  were  not  in  any  sense  owners  of  the  land  The  consent 
alienated,  when   they   were    asked  to  give   their  wasie.^uired, 
consent  to  the  alienation.     They  were  only  po-  w^e  potent 
tential  owners.     It  was  as  potential  owners,  not  ofVic'iand. 
as  joint  owners,  that  they  were  referred  to. 

After  the  right  of  alienation  had  been  estab-  Estahiish- 
lished  Ijy  general  consent,  or  by  law,  it  was  cus- ii<r],tof 
tomary  to  warn  all  heirs,  kinsmen,  and  neighbors,  Tiu"(Vihn3 
that  no  claims  on  their  part  would  be  valid.     This  !^,,d  n,"^!!!!!" 
appears  plainly  in  the  following  formula:  sivc  Jilii'{^l^^^^^^^^^^' 
ex  nobis  nascanlur  end  non,  supra  dicta  res  in  ilia  villa 


56  EARLY   HISTORY   OF  LAND-EOLDIXG 

d  in  omni  marcliia  illuis,  absque  contradiciione  iiUius 
proximorwn  aid  vicinoriim   meorum   diehiis  vilae  suae 
possideat.     This  is  only  one  among  many  cases  (^^). 
The  claims  of  heirs  were  no  longer  considered. 
Quaiifica-         It  must  here   be  observed,  however,  that   the 
miingre^     objcction  to  an  alienation   of  land,  in  the  early 
^^^  ^'        times,    was    not    so    much    an    objection    to    the 
alienation  of  the  land,  as  it  was    to    the    admis- 
sion of   strangers  into   the  clan  villages,  as  pro- 
prietors.    In   most  cases    there   must  have  been 
land  enough  for  everybody;  so  a  possible  inher- 
itance  from  a  neiurhbor  and  kinsman  would  not 
receive  very  much  consideration.     The  admission 
of  a  stranger,  however,  into  the  family  or  the 
clan  was  a  serious  matter,  and  objection  would 
Another  ex-  be  made  in  many  cases.     After  all,  it  is  upon  this 

planation  of  i  ,  i      i      i  •    •    • 

the  mcini     grouud,  morc  than  upon  any  other,  that  the  vicini 

"^  '  right  rests.     If  any  man  objected  to  the  entrance 

of  a   stranger,  as  proprietor,  into  the   family  or 

clan  of   which  he  was  a  member,  the    stranger 

strangers     had  to  go  away.     If  no  one  objected,  he  might 

admitted  to  .  i      • ,  <     i 

the  clan  vii-  comc    HI.      As   a   rulc    strangers   w^ere    admitted 
pe'^idants  or  iuto  tlic  family  or  clan  as  dependants,  or  slaves, 

shives,  not  as  . 

proprietors,   uot  as  proprietors. 

No  element       Tlic  German  clan  system,  to  return  to  our  main 

of  conmiu-  ,  .  i      ^  -\ 

nism  in  the  argument,  was   in   no    respect    based   upon   com- 

systen"  ^  ^"  munity  of  land.     We    do   not   propose   to  enter 

here    into    any    personal    controversy    with    the 

advocates  of  a  primitive  communism.     It  will  be 

worth  while,  however,  to  enumerate  certain  facts 


AMONG  THE  GERMANS.  57 

for    the    consideration   of  open-minded    students.  Theses 
Some  of  these  facts  have  been  already  described  ;  theory  of  a 
but  it  will  be  well  to  set  them  out  too:ether  in  iolillijunis 


o 


eomiuunism. 


order  and  array. 

There  is  no   evidence  of   community  of   land  Community 

of  land  not 

in  the  statements  of  Cassar.     We  mean  by  com-  to  be  in- 

.  .      .  ferrccl  from 

munity  of  land  collective  or  communistic  owner- the  state- 

„.  T      •  '   1       1      n  '  ments  of 

nership   of   it,  as   distinguished   irom   private  or  cssar ; 
individual  ownership  (^"^). 

There    is   no    evidence  of  community  of  land  nor  from  the 

cm-  /i^ox  statements 

in  the  statements  of   Tacitus  ( '^'j.  of  Tacitus. 

As  soon  as  the  migrations  were  over,  individual  individual 

1  1  rm  •      /•      j_    •  i    1      pvoperty  ex- 

propert}^  existed  everywhere,     ihis  lact  is  estab- isted  every- 
lished  be}' ond  question  by  passages  of  the  early  the  wander- 
laws,  formula?,  and  documents.     There  is  no  trace  "^°^' 
of  community  of  land,  i.  e.  collective  or  commu-  Community 
nistic  ownership  of  it,  discoverable  in  these  rec-  where  dis- 
ords  Q^^).     Property  was  often   held   in   common.  '^"^^  ^ 
Holding  in  common,  however,  is  one  thing,  and  Holding  in 

.,.,,,.  .  1  ^,  .  common  no 

communistic  holding  is  another.      Community  of  evidence  of 

-IT-  i.j.1         •/•  in  TIT  •      commuiiism. 

land    IS    not    to    be    interred    from  a   holding   in 
common. 

Had  the  ownership  of  the  land  been  vested 
in  communities  rather  than  in  individuals,  we 
should  find  some  direct  reference  to  the  fact  in 
our  records.  We  should  find  laws  and  reij-ula- 
tions  regarding  the  use  of  common  lands.  The 
records  abound  in  references  to  the  rii»:hts  of 
individuals  in  land  held  in  common;  Ijut  the 
rights   of    the    community   therein   are    nowhere 


58  EARLY  HISTORY   OF  LAND-HOLDING 

The  land  of  referred   to.      The    conclusion   is,  that   the    cora- 

the  commu-  • ,        i       i  •    ^  mi  •  ■>■  i 

nity  was  the  munity  had  no  rights,     ihe  community  did  not 
individual    exist  as  a  land-owiiing    corporation.     The    land 
of  the  community  was  the  land  of  its  individual 
members  (^^*). 
Disputes  re-       Disputcs  in  regard  to  the  possession  and  owner- 
settied°Ly     sliip   of   land  wcrc   commonly   settled   by   battle 
between  the  litigants,  not  by  the   community  of 
which  they  were  members,  —  which  would   cer- 
tainly have  been  the  case  had  the  ownership   of 
the  land  been   vested   in   the   community  rather 
than  in  the  members  (^^). 

^Yhen  fighting  for  land  was  given  up,  disputes 
in  regard  to  rights  of  property  were  referred  nei- 
ther to  local  assemblies  nor  to  local  magistrates, 
Afterwards   but  to  the  cluef  or  king,  or  an  agent  of  the  chief 

they  were 

settled  by     or  king.      One   of  the  earliest  of    our   Irankish 

the  chief  or  .  .  ,  t       j       ■  j 

king,  or  his  formulag  IS  entitled,  Dc  relatione  dwecta  inter  regem 
"  *  et  pagcnscs.  When  neighbors  fell  to  quarrelling 
in  regard  to  their  respective  rights  of  property, 
and  could  not  agree,  the  chief  or  king  sent  his 
agent,  or  7m-ssi(s,  to  settle  the  matter,  —  to  divide 
the  property  and  to  give  each  man  his  rightful 
share  (dcbita  portio).  This  we  know  from  the  for- 
mula entitled,  Dc  divisione  nl)i  rcge  accederit  missus. 
When  fighting  for  land  had  been  given  up,  dis- 
putes in  regard  to  it  were  settled  by  the  chief 
or  king,  or  an  agent  of  the  chief  or  king  (^^^). 

The   land    to   be    divided  is   described    in    the 
formula  just   cited  by  the  word  cdod,  which   re- 


AMONG  THE  GERMANS.  59 

minds  us  of  the  fact,  that  the  kind   was  every-  Land  every- 
where  held,  from   the   time  of  the  Folk-laws  on,  according  to 
according    to    descent    and   laws   of   inheritance,  heritauce. 
The   laws   of    inheritance   may   be   read,  and    it 
can  be  seen,  by  reference  to  formulas  and  docu- 
ments,  that   they    governed    the    distribution   of 
land,  as  well  as  of  movable  property  (^^"). 

In  so  far  as  neighbors  were  kinsmen,  descend- 
ants of  a  common  progenitor,  the   ownership  ofiiieowner- 
the   land,  whether   divided   or  undivided,  would,  wL,  ther"- 
according    to   the    law  of  inheritance,  be  vested  uted  among 
distributively,  and  not  collectively  (^^^). 

Undivided  lands  were  undivided  inheritances.  This  is  true 
This  follows, —  1st,  from  the  existence  of  the  laws  ed,  as  weii  as 
of  inheritance  ;  2d,  from  the  fact  that  the  indi-  kud. 
vidua]  was  allowed  to  appropriate  his  share  of 
the  undivided  land,  or  could  have  his  share  di- 
vided off  and  assigned  to  him  at  any  time ;  3d, 
from  the  fact  that  shares  in  the  undivided  land 
were  regularly  proportioned  to  inheritances  held 
in  severalty ;  the  lands  held  in  severalty  being 
divided  by  inheritance,  the  shares  in  the  undi- 
vided land  were  divided  also ;  4th,  from  the  fact 
that,  when  severalty  lands  were  alienated,  ^;ro 
rata  shares  of  the  undivided  land  were  alienated 
with  them ;  5th,  from  the  fact  that  shares  of  the 
undivided  land  are  repeatedly  described  as  inher- 
itances (^'^•'). 

Now   we    must   bring   forth    a    fact   whicli    we 
have    not   yet    considered,  —  the    fact    that    any 


60  EARLY  HISTORY  OF  LAND-HOLDING 

How  the      man   could,  if  he  pleased,  separate  himself  from 

individual      ,.,.  ,  •    ^  ^  ,,..,. 

could  with-  nis  kmsmen  and  neighbors,  and  his   inheritance 
his  kinsmen,  from  their  inheritances,  so  that  they  had  no  longer 

with  his  in-  •    i   .        p    •    i        • .  p  i  •  ^ 

heiitauce.  finj  riglit  ol  inheritance  irom  him  nor  he  any 
from  them.  This  fact  is  contained  in  the  pas- 
sage of  the  Lex  Salica,  De  cinn  qui  sc  de  paycntilla 

T\\e  hoarmg  ioUcre  vult  {^^).      It  is  a  o-reat   ara;ument  of   the 

of  this  fact  ...  . 

in  regard  to  advocatcs  of  a  primitive   communism,  that,  if  a 

the  vicini  ,  .       .    ,        . 

right.  man  had  no  sons,  his  inheritance   passed  to  the 

kinsmen  and  neighbors,  —  "  back  to  the  com- 
munity," we  are  told,  "  from  which  it  was  origi- 
nally received."  Inasmuch,  however,  as  it  lay 
in  the  power  of  the  individual  to  cut  off  his 
nei«;hbors  and  kinsmen  from  this  riprht  of  sue- 
cession,  the  argument  is  worthless. 

The  vicini        Tlic  mcrc  fact  that  when  a  man  died  without 

right  is  no  i  •     -i        i  i  i  •  '    ^  ^  i   i  • 

evidence  for  sons  his  land  passcd  to  his  neighbors  and  kinsmen, 

community    .  ,      •  .  ii  •    i 

of  land.  IS  uo  argument,  m  any  case,  to  prove  the  exist- 
ence of  community  of  land  ;  because  it  remains 
an  open  question  whether  the  land  w\as  received 
by  the  kinsmen  and  neighbors  collectively  or  dis- 
tributively.  If  they  received  it  distributively,  so 
that  any  one  of  them  could,  whenever  he  pleased, 
have  his  portion  given  to  him  as  a  permanent 
severalty  (for  himself  and  his  descendants),  com- 
munity of  land  is  out  of  the  question.  That  the 
neighbors  and  kinsmen  received  the  land  distrib- 
utively, in  this  way,  has  been  established  conclu- 
sively by  testimony  of  the  records  (^"). 

In  view  of  all  this,  the   student  will   certainly 


AMONG  THE  GERMANS.  CI 

hesitate  before  he  accepts  the  theory  of  a  prim- 
itive communism;  miless  he  prefers  authority  to 
facts. 

The  chief  error  of  the  advocates  of  a  primi-  The  advo- 
tive  communism   is,  that  they  argue   community  piimitive 

/.-111  ,1  r      1  T'1111  communism 

of  land   Avherever  they  nnd    undivided   land,   or  have  de- 
land  held  in  undivided  shares.     The  argument  is  dTvid^ed "and 
surely   inconclusive.      The   silm  communis   of  the  \l^^^^^ 
early   records,   for    example,    which    was    simply 
undivided    property,  subject    to   appropriation   or 
division  among  the  owners,  at  any  time,  has  been 
regularly    described   as    their    common   property. 
It  was  not  their  common  property,  it  was   sim- 
ply  their  undivided  property.     Given  a  case   of 
undivided  land,  the  following  questions  should  be  Questions  to 
asked.     Is   it   subject  to    appropriation    or  divis-  regard  to  a 

n       -rn         i      •       -i  •    •     i  '  iii-  case  of  undi- 

1011 :  11  not,  is  it  a  joint  possession  held  m  un-  vidcd  land. 
divided  shares  ?  If  so,  how  is  the  shareholding 
governed  ?  Are  the  shares  regarded  as  private 
property  ?  Are  they  transmissible  by  inheritance  ? 
Are  they  divisible  ?  Are  they  alienable  ?  Perhaps 
the  holding  is  communistic.  If  so,  why  ?  Are 
there  any  redistributions  of  the  same  land  among 
the  same  persons,  or  their  representatives  ?  Upon 
what  principle  are  the  redistributions  made  ?  Are 
they  made  po'  stirpes,  according  to  descent  and 
the  law  of  inheritance  ?  If  so,  the  ownership 
would  not  be  communistic.  Are  the  redistribu- 
tions made  according  to  rights  of  property  vested 
in  individuals?     If  so,  the   ownership  would  not 


62  EARLY  HISTORY  OF  LAND-HOLDINa 

be  communistic.  Are  the  redistributions  made 
according  to  the  judgment  of  the  community,  or 
that  of  magistrates  representing  the  communi- 
ty? In  that  case  only  would  the  ownership  of 
the  property  be  correctly  described  as  conimu- 
what  the  nistic.  The  advocates  of  the  communism  theory 
a  priniiiive   arc,   therefore,   bound   to  adduce  from  the  early 

coiumunism  -,  .  i  •    i       ^  i  it*  i 

have  to        records   cases   m   which    the    same    land   is    sub- 
ject to    redistribution  among  the    same    persons, 
or  their  representatives,   according  to   the  judg- 
ment of  the  community,  or  of  magistrates  repre- 
senting the  community,  irrespective  of  any  claim 
or  claims  on  the   part  of  individuals.      Can  the 
advocates   of   a   primitive   communism   do    this  ? 
We    think   not.      They    will   find    a   great   many 
cases   of    undivided   property,    of   property   held 
in  undivided  shares,  in  the  early  records.     They 
will   hardly   find    a    single   case    of    communistic 
property. 
Suppose  a         Supposc,  howcvcr,  they  were  to  find,  here  or 
communism  tlicrc,  a  fcw  cascs ;  w^ould  that  be  a  sufficient  basis 
uce  .  ^^^  ^^^  theory,  that  the  holding  of  land  among 
No  general   the   early  Germans  was  generally   communistic? 
could  be'      Surely   not.     The   conclusion   would  be,  that,  al- 
them.'  '"'"  though    the    principle  of   individual   property  in 
land  was  generally  recognized,  communistic  hold- 
ing was  not  altogether  unknown.     The  cases  of 
communism  would  be  exceptions  to   the  general 
rule.     They  would  be  explained  as  the  result  of 
peculiar  conditions  or  circumstances. 


AMONG  THE  GERMANS.  Go 

The  first  reason  why  the  advocates  of  tlie  cora- 
munisra  theory  are  in  error  is,  that  they  have 
regularly  mistaken  undivided  propertj^  for  com- 
mon property,  holding  in  common  for  communis- 
tic holding.  Another  reason  is,  that  they  have  The  advo- 
ignored    the    distinction    between    proprietorship  pdmidve 

T     ,  -ri-      T  c  •    ,-       .  communism 

and  tenancy,     rmdmg  cases  oi  communistic  ten- i,ave  ignored 
ancy,  they  have  brought  them  forward  to  prove  tilln  iletwc^en 
the  existence  of  communistic  proprietorship ;  for-  Eamr 
get'ting   all   the    time,   that    wdth    every   case    of^*^'"'"'^'^" 
tenancy    there    is   a   case   of  proprietorship    con- 
comitant with  it,  embracing  it.     When  the   case 
of  tenancy  is  adduced  to  prove  the  existence  of 
a  primitive  communism,  it  remains  for  those  who  How  they 

,     ,.  .  ,  .  ,  ,  1       Ifiy  them- 

do  not  believe  m  such  communism  to  adduce  the  scivi-.s  open 

^  .  ,  .  ,  1-11  t>^^  attack, 

case  01   proprietorship   under  which  the    case  ot  in  citing  a 
tenancy   is   included,  to  prove    the   existence    ofmunistic 

,  ,  tenancy. 

private  property. 

It  will  be  well  to  illustrate  this  wdtli  an  ex- 
ample. The  following  passage  occurs  in  the 
records  :  —  In  Jiac  silva  niiUiis  nostrum  privatum  ha-  Case  in 
hchat  aliqidd,  communiter  pertinehat  ad  omnes  villac 
nostrae  incolas.  This  passage  Q'^)  has  been  cited 
very  frequently  to  show  that  forest  land  belonged 
originally  to  the  community,  that  the  individual 
members  had  only  a  usufruct. 

It  should  be  observed,  in  the  first  place,  that 
the  document  dates  from  the  year  1173,  so  that 
it  is  too  late  to  prove  anything  in  regard  to 
the  condition  of  things  in  primitive  times.     Then 


64  EAELY  HISTORY  OF  LAXD-IIOLDINa 

it  should  be  noted,  that  the  land-holders  are  ten- 
ants under  landlordship.  They  are  nosiri  incolac  in 
villa  nostra.  They  are  not  the  owners  of  the  land. 
The  owner  of  the  land  is  outside  of  the  com- 
munity. There  exists  a  proprietorship  or  land- 
lordship outside  of  the  community,  embracing  it. 
The  passage  is  therefore  no  evidence  for  a  primi- 
tive communism,  because  it  proves  primitive  land- 
is  the  ton-    lordship  as  well.    It  is  an  open  question  whether 

ancy,  or  the  •,!  -    i-       ^  /»ii' 

laiidioiiiship  we  have  in  the  communistic  tenancy  oi  land  in 
eliYiei  'form  tlic  villa,  or  in  the  landlordship  over  it,  the  earlier 
property  ?  form  of  landed  property.  Is  it  an  open  question  ? 
The  land-  Hardly  ;  for  in  the  natural  course  of  events  land- 
presumably,  lordship  or  proprietorship  antedates  all  forms  of 

tenancy  existing  under  it  ("■'^). 
The  conimu-      It  may  be  urged  against  the  advocates  of  the 
reversed  hy^  commuiiism  thcoiy,  that  the  theory  is  reversed  by 
ogy  d'^tbe    tlic  chroiiology  of  the  evidence.     It  is  said,  that 
evidence.      p^^yQ^te  property  has  arisen  from  the  disentangle- 
ment of  individual  from  collective  rights ;  but  the 
evidence   adduced  to  prove  the  existence  of  col- 
lective rights  is,  all  of  it  (the  statements  of  Caesar 
not  being  regarded  as  such  evidence),  very  much 
later  in  date  than  that  which  is  adduced  to  prove 
the  early  existence  of  private  property.     It  will 
be  found  upon  examination,  that   the   theory  of 
individual  property   rests  upon  testimony  dating 
from    the    time    of    Tacitus.      Then    it    will    be 
found  that  the   theory  of  communism   rests   en- 
tirely upon  records  of  later  mediaeval  and  mod- 


AMONG  THE  GERMANS.  65 

ern  times.     The  advocates  of  the  communism  the- 
ory have  adduced,  we  beUeve,  no  unquestionuljle 
cases  of    communism   of    earher    date    than    the 
twelfth    or    thirteenth    century.      AVe    are    war- 
ranted, therefore,  in    concluding   that   the   advo- 
cates of  the  conununism  theory  have  disregarded  tilifchiw^i^ 
the  chronology  of  the  evidence.     This  being  con-  eSence"^ 
sidered,  the  conclusion  must  be,   not  that   there  fialvJuai 
was  communism  before  there  was  individual  in-op-  Foperty  be- 

i        I-     lore  there 

erty,  but  that  there  was  individual  property  be-''^'^-^''^"^ 

*'  '  I       L         J  commu- 

fore  there  was  communism  (^^^).  "i*"^- 

Lastly,  it  may  be  urged  against  the  advocates  The  advo- 

f*n,tGS  of  tlio 

of    the    communism   theory    that  they  have   put  conimunisra 
too   much   faith  in    the    accuracy   and   judgment  deferred  too 
of  certain  eminent  writers.     A  professes  to  have  S,ority?  ^^' 
established  certain  facts ;   B,  pleased  with  them, 
has   accepted   them,  upon  A's   authority.     C  has 
accepted  them  upon  the  authority  of  A  and  B. 
D  has  accepted   them   upon  the   authority  of  A, 
B,  and    C ;   and    so    on.      The    result   is   a   con- 
sensus of  opinion    based    upon    the  judgment  of 
one  man,  —  an  opinion  of  questionable  value  in 
many    cases.      What    we  want    in    science    is    a 
consensus  of  opinion   based   upon    the   results  of 
independent    investigations.      This   will    not    be 
disputed. 

We  have  answered  the  arguments  of  the  advo- 
cates of  a  primitive  communism,  so  far  as  this  was 
possible  without  entering  into  any  direct  personal 
controversy.     It  will  be  well   now  to  state  once 


GG  EARLY  HISTORY  OF  LAXD-HOLDING 

more  the  conclusion  to  which  Ave  have  ourselves 
A  brief  state- been  led.     We    conclude,  that  the   German  clan 

ment  of  the  ,  ,  .      ,  .  , 

conclusion    sjstem    was   based   upon  kni.ship,  upon  tiie   prin- 

to  which  we      .    ,  o    •      t    •  t       i  ,  i  ,^ 

have  been  ciplc  01  individual  property,  and  upon  the  prin- 
ciple of  inheritance.  All  lands  held  in  severalty, 
even  for  a  very  short  time,  were  regarded  as 
inheritances,  and  all  undivided  lands  were  undi- 
vided inheritances,  to  be  appropriated  or  divided 
among  the  heirs  at  any  time.  The  clans  were 
associations  of  heirs  with  partly  divided,  partly 
undivided  inheritances  of  the  land  and  the  prop- 
erty placed  upon  it. 

Now,  having  described  the  clan  system  of  the 
Germans ;  having  shown  how  it  was  based  upon 
kinship,  the  principle  of  individual  property,  and 
the  principle  of  inheritance  ;  having  shown  that 
it  was  in  no  respect  based  upon  community  of 
property  or  communism  ;  we  may  go  on  to  de- 
scribe the  causes  which  led  to  the  breaking  up 
of  the  system,  —  to  a  dispersion  of  those  groups 
of  heirs  with  partly  divided,  partly  undivided 
inheritances,  which  have  been  described. 
Causes  The  causcs  w^ere, —  1st.  The  admission  of  daugh- 

thi^i.reaking  tcrs  to  the  right  of  inheritance  in  clan  land,  when 
clan  systm.  there  wcrc  no  sons ;  daughters  who  might  marry 
men  of  alien  clans.  2d.  The  custom  of  adopting 
strangers  into  rights  of  property  and  inheritance 
in  the  clan  land.  3d.  The  custom  of  alienating 
clan  land  to  strangers  by  gift  or  by  sale.  And 
4th.  The  custom  of  admitting  strangers  to  a  pre- 


AMONG  THE   GERMANS.  G7 

scriptive  title  in  clan  land.  There  were,  without 
doubt,  other  causes  which  might  be  mentioned ; 
but  these  were  the  principal  causes,  and  we  will 
confine  our  attention  to  them. 

The    German    woman  was   not   obliged,  like  a  Oerman 

,,,,  .,.,       women  not 

daughter  oi  Zelophehad,  to  marry  withni  the  oMigej  to 
tribe  of  her  father  (^*^) ;  so,  when  she  received  in' the  la- 
an  inheritance  of  the  land,  she  often  took  this 
inheritance  from  the  inheritance  of  her  father's 
tribe  and  put  it  into  the  inheritance  of  the  tribe 
of  her  husband.  In  other  words,  inheritances 
were  removed  from  one  tribe,  or  clan,  to  another. 
The  inheritances  of  different  clans  became  inter- 
mixed, and  the  clansmen  with  them. 

Amonof  the  Anorli  and  Werini,  the  rii2:ht  of  in-  The  admis- 
heritance   was  conceded  to  daughters   only  when  women  to 
there  were  no  males  left  in  the  clan.     The  clan  heiitance  in 
consisted  of  the    male    descendants   of   live  sue-  among  the 
cessive    generations.     When    no    male    was   left  wSl'ni'"' 
within  this   limit,  the  clan  was,   properly  speak- when  there 
ing,  extinct.     The   clan   land   might  then   go   to  males  left  in 

.1  'f    l^  1  -ji       j_i  the  clan,  the 

the   women  ii    there    w^ere    any,  and    with    them  women  took 
into    the    clans   wdierein   they   were    received   as 
wives  {^^^'). 

Among    the    Franks   we    have,  instead   of  the  ^^ow  was  it 

...         among  the 

descendants  of  five    successive    generations,  sim-  Franks, 

,  when  there 

ply    the    l':insmen   and    neighljors.     The  kinsmen  were  no 

1-11  T        'n     -I  1  viciiu? 

and  neighbors  were  not  classmed  as  they  were 
among  the  Angli  and  Werini ;  so  when  a  man 
died   without  sons,  his    inheritance   passed   to   all 


08  EARLY  HISTORY  OF  LAND-HOLDING 

of  them,  instead  of  to  classes  of  them  (^^^). 
Here  we  have  probably  a  primitive  condition 
of  things.  We  do  not  know,  however,  whether, 
when  there  were  no  kinsmen,  no  neighbors,  the 
women  of  the  clan  took  the  clan  land  or  not. 
The  law  does  not  contemplate  such  a  contin- 
gency. For  some  time,  probably,  there  was  no 
thought  of  women  holding  land  -,  but  we  read 
Rule  of  the   in    the   Lex  Salica :  De  terra  vcro  nulla  in  miiliere 

Lex  Salica. 

hercditas ;  so  also  in  the  Lex  Ripuaria  :  Fcmina  in 
Rule  of  the   hcrcdltatcm   avialicam   non   siicccdat  ("^) ;    and  it   is 

Lex  Kipua- 

ria.  evident,  from   the    existence    of  such    laws,   that 

the  question  whether  women  should  be  allowed 
to  hold  land   or   not  was   comini?  under  consid- 

Riseofasen- eration.     Wc  see  in  some  of  the  early  formulae 

tiniriit  and 

opinion  in     that  tlicro  was,  ill  certain  quarters,  a  sentiment 

favor  of  the  ,  .     .  ,  ^  t  •  c     ^         ^ 

rights  of  and  opniion  opposed  to  the  doctrine  oi  the  law- 
The  exclusion  of  women  from  the  right  of  in- 
heriting land  is  described  in  one  of  these  early 
formulas  as  an  impious  custom :  Dhdurna  sed  ini- 
pia  inter  nos  consnetudo  ieneiur,  id  dc  terra  patcrna 
sorores  cnm  fratrihus  portionem  non  haheant.  This 
is  the  readimz;  of  the  Paris  MSS.  In  the  Vati- 
can  MS.  a  direct  reference  is  made  to  the  Lex 
Salica  by  the  words  secundum  Legem  Salicam  (^*^). 
It  was  proposed  that  daughters  should  succeed 
to  equal  shares  with   their   brothers.     This   was 

Dauf^hters  ■"■ 

allowed  to     the  radical  as  opposed  to  the  conservative  view. 

take  the  land  ^  ^ 

when  there   Tlic  rcsult  was  a  compromisc.     Daughters  were 

were  no  •    i        •  i  i 

sons.  allowed  to  take  the  inheritance  when  there  were 


AMONG  THE  GERMANS.  69 

no  sons,  no  brothers.  This  rule  was  adopted 
amon<jr  the  Salian  Franks  toward  tlie  end  of  the 
sixth  century  (^^).  It  was  adopted  at  an  early 
period  by  the  Alamanni,  the  Bavarians,  the  Sax- 
ons, and  the  English  (^^^).  It  was  adopted  after- 
wards by  other  nations. 

As  soon  as  women  were  admitted  to  inherit-  Result  of 
ances  of  the  land,  to  the  exclusion  of  collateral 
kinsmen  and  neighbors,  strangers  came  into  the 
family  or  clan  villages,  as  husbands  of  the  female 
proprietors.  They  were  the  progenitors  of  new 
families,  new  clans,  in  the  villages. 

Adoptions    were    not    uncommon    among    the  Adoptions 

^  1,1  among  the 

Germans,  it  appears,  however,  that  the  person  Germans. 
adopted  did  not  come  under  the  authority  of 
the  person  adopting.  He  did  not  become  his 
son,  did  not  take  his  name,  did  not  perpetuate 
his  family.  The  person  adopted  received  gifts, 
goods  or  land,  from  the  person  adopting,  and 
was  expected,  consequently,  to  behave  like  a 
faithful  son  and  follower.  That  is  all  there  was 
in  the  Teutonic  adoption.  The  words  filiui^  and 
heres  were  usually  employed  in  the  procedure, 
and  appear  in  descriptions  of  it,  but  they  had 
no  real  significance,  and  were,  probably,  bor- 
rowed from  the  Koman  law,  thoughtlessl}'.  The 
person  adopted  was  little  more  than   a  receiver  The  poison 

P       •  cj.  7  ,        .         7        .    adopted  was 

01    gilts,  —  cr/nos,  enscs,  c(//peoft,  anna,  ferns,  clomi-  simply  a 
his,  etc.,  —  who  was  consequently  under  a  certain  g^ftlv'biiged 
moral  obligation  towards  the  giver  (^^^).  **^  ^  ^^  °^^^^' 


70  EARLY  HISTORY  OF  LAND-HOLDING 

The  passage       We  liave   an   elaborate  account  of  the  proced- 
mic  of  the     urc  01   auoption  m  the  Lex  Salica,  De  aj/utomie. 

Lex  Salica.     ^n^  ^  •  i  i  ■»  t       t 

Ine  clansman  went  nito  the  assembly,  and,  throw- 
ing a  rod  into  the  lap  of  the  person  adopted, 
called  him  his  heir,  hercdon;  and  then  proceeded 
to  describe  what,  as  heir,  he  was  to  receive, — 
de  fiirliuia  sua  diced  verhiim  quantum  voluent,  aid 
ioiam  furhmam  siiam,  cid  voluerit  dare.  The  per- 
son adopted  then  proceeded  to  take  possession 
of  what  had  been  given  to  him,  in  the  presence 
of  witnesses.  Ijjse  in  cujiis  laisiun  fiducam  jactavit 
in  casa  ijmus  manere  debet,  ei  hospiies  ires  suscipere 
debet,  et  de  facultate  sua  de  quantum  ei  datur  in  j)0- 
testatcm  suam  habere  debet.  The  fact  of  his  havins: 
been  adopted,  of  his  having  received  a  grant  of 
property,  of  his  having  taken  possession  of  this 
property,  is  afterwards  proved  by  the  testimony 
of  the  witnesses  (^^■^). 
The  adfa-  According  to  the  Lex  Ripuaria,  a  person  could 
Lex  Ripua-  be  adopted  into  a  right  of  property  either  by 
a  traditio  testibus  adhibitis,  as  in  the  Lex  Salica,  or 
by  means  of  a  written  document  duly  authen- 
ticated,— per  scripturariim  senem.  As  in  the  Lex 
Salica,  the  act  of  adoption  is  described  by  the 
term  adfatimi,  —  cuicunque  libet  de  ^jrozimis  vel  ex- 
traneis  adoptare  in  hereditatem  vel  adfatimi  (^^). 
Was  the  Tlic    qucstion   arises.   Was   the   adfatimus   pro- 

procedure     cedure  of   the   Lex   Salica  employed  to  alienate 
tolaiicnate    land?     The  question  is  readily  answered  by  ref- 
erence to    an  early  formula,  where  we  have    an 


land? 


AMONG   THE   GERMANS.  7l 

alienation    described   by  the  term  qfafimum,  and  Evidence  to 
the    property    alienated    is    supposed    to    consist  "was  so  em- 
of  land   besides   other  things,  —  terris,  domibiis,  et^"^^^  ' 
cetera  Q'^'). 

It  has  been  argued  that  the  ad/afimus  proced- 
ure of  the  Lex  Salica  was  not  emploj-ed  for 
the  alienation  of  land.  It  is  said,  in  the  first 
place,  that   the   essential    part  of  the   procedure  Argument 

11  •!  /•  \i  1  11      u{)on  the 

took  place  in-doors  [incasa),  where  the  movable  words m 
possessions  would  be  concentrated ;  that  it  was 
these  movable  possessions  that  were  alienated, 
not  the  land,  which  would  lie  outside  the  house. 
The  argument  is  invalid,  because  the  house  would  The  argument 
naturally  stand  in  the  midst  of  the  land,  and 
would  be  as  good  a  place  as  any  other  for  the 
alienation  of  it.  Unless  the  procedure  of  aliena- 
tion took  place  here,  there,  and  everj^where,  the 
house  [cam)  would  be  the  most  convenient  place 
for  it.  A  complete  refutation  of  the  argument, 
however,  is  found  in  the  formula  where  the  alien- 
ation of  res  illas  vel  villas  illas  is  made  per  portas  et 
per  osUa  de  ipsas  villas,  vel  de  illas  casas  dominicatas. 
There  is  another  case  equally  conclusive  in  the 
Ilistoria  Frisingensis :  BaloU,  virilitcr  circiimcincfus 
yladio  stto,  siahat  in  medio  triclinio  domiis  suae,  tradi- 
ditqiie  quidrpdd  ibidem  hahuit,  et  in  alio  loco,  et  in  tcrtio 
loco,  quicquid  hahuit,  practer  unam  colonicam  (^^'^). 

Anotlier  argument  used  to  prove  that  the  ad-  The  word 
fatimus  procedure  of  the  Lex  Salica  was  not  em-  "'  ""^' 
ployed   for   the    alienation   of  land    is,    that   the 


72  EARLY  HISTOKY  OF  LAXD-HOLDING 

"svorcl  fiuiuna,  ^vllicll  is  used  to  describe  the  prop- 
erty alienated,  would  not  be  used  to  describe 
landed  property.  The  argument  is  worth  no 
consideration.  The  word  fortuna  is  constantly 
used,  even  by  the  classical  writers,  usually  in 
the  plural,  but  sometimes  in  the  singular,  to 
signiiy  what  fortune  gives,  —  possessions,  prop- 
erty, wealth,  riches  of  all  kinds :  so  there  is  no 
reason  why  it  should  not  have  been  used  in  this 
way  by  the  writer  of  the  Dc  affatomie.  It  is 
surprising,  however,  to  find  a  word  correctly 
used  by  him.  He  is  a  very  bad  writer.  It  should 
The-n-ord  be  obscrved  that  the  word  facuUas  occurs  in  the 
passage  in  the  place  of  the  word  furtuna.  This 
word  facuUas  is  very  frequently  used  in  our 
records  to  describe  landed  property.  In  one  of 
the  Merovingian  diplomata,  for  example,  we  read 
about  the  faciiltaiem  vcl  villas  illas  tie  alode,  cum 
ierris,  etc.  (^^').  Landed  property  is  frequently  de- 
scribed by  the  word  pcciuiia,  and  even  by  the 
word  mnncn,  in  the  records  {^'^).  But  it  is  wast- 
ing time  to  refute,  in  this  elaborate  way,  the 
arguments  against  the  aclfaiimus  procedure  being 
employed  for  the  alienation  of  land.  The  argu- 
ments are  quite  without  force.  The  procedure 
was  used  for  the  alienation  of  land,  without 
doubt. 

The  evidence  goes  to  show  that  the  persons 
adopted  by  the  De  affatomie  procedure  were,  as 
a  rule,  near   kinsmen,  as   we    should    have    sup- 


AMONG  THE  GERMANS.  73 

posed  a  irriori  (^^^).  Strangers  were  very  rarely  strangers 
adopted  into  a  right  of  property  in  clan  land  m  adopted  at 
the  early  time.  Cases  occurred,  however.  This 
we  know  from  the  Lex  Ripuaria,  from  the  words 
de  p'oxinm  vcl  cxtraneis  adopt ar e ;  also  from  the 
formula  entitled  Si  qids  cxtranco  Jiominc  in  loco  fili- 
orum  adopiaverit.  It  may  be  inferred,  perhaps, 
from  the  words  hominem  cpd  ei  non  pertineat,  in 
the  Dc  afftdomie  (^*^°).     Of  course,  whenever  stran- The  result 

T        ,      T     •     ,  •    1  J  f>  i         .of  the  adop- 

gers   were    adopted    mto    rights    or    property    m  tionofstran- 
family   or  clan  land,  they  came  into  the   flxmily  ffgh4"of 
or  clan  villages,  and  were  the  founders  of  new  ciaTlS.'^ 
families,  new  clans,  therein.     In  this  way  the  vil- 
lages came  to   have  a  heterogeneous  population. 

In   some    branches    of    the    German   race    the  Early  alien- 
right  to  alienate  land  was,  without  doubt,  exer-i^nd!^" 
cised  in  prehistoric  time.     The  Franks  alienated 
their   lands   in   the   time    of   Lex    Salica,  as   we 
have  seen.     The  right  of  alienation  is  described 
in  a  Frankisli  formula  as  a  lex  el  consiieiudo  lon- 
ginqua  {^^'^).     We  read  in  documents  of  the  eighth 
centurj^  that  the  laws  and  customs  of  the  Franks 
permitted  a  man  to  do  what  he  j^leascd  with  his 
property :    Leges  et  jura  sinuni  el  convenicntia  Fran- 
corum  est,  id  de  facidtaiil)iis  sins  qidsque  quod  facere 
voluerit   liberam  haheat  potestatem.     In   a   document 
of  the   year    855  a   certain   man   named   Folker 
alienates    his    inheritance,   consisting   of   houses,  Right  of 
lands,  and  slaves  :    coram    testibvs  ei  nobdium  viro-  accorded  by 
rum  praesentia,  secundum  Legem  Ripuariam  et  Sail- 
cam  (^^). 


74  EARLY  HISTORY  OF  LAND-HOLDINa 

Limitations       Certain   limitations   were    usually   attached    to 

to  the  right      ,  •    i  i        />       t 

(.faiiuna-  the  Tight  ol  alicuation,  either  by  custom  or  by 
law ;  such,  for  example,  as  that  which  we  find 
in  the  Lex  Saxonum,  where  a  man  may  alienate 

A  man  must  bis  land  provided   he  does  not,  in  so  doins;,  dis- 

not  ihsin-       .  .  .  .  .      , 

heritiiis      inherit    his    children.     A   similar    rule    obtained 

children. 

among  the  Lombards :  nulii  lied  sine  certa  culpa 
jUimn  mum  cxhcredare,  ncc  quod  ei  dehetur  per  legem 
alii  thhigare  (^■'^).  Alienations  of  inheritances  re- 
quired, therefore,  in  many  cases,  the  consent  of 
the  heirs.  Their  consent  is  often  referred  to  in 
HenTOstnotthe    documcnts  (^*^'*).     In  some   cases  the   consent 

(lisinlierit  phii- 

auyofhis    of  all  tlic  hcii's,  Collateral  as  well  as  descendant, 
had   to  be   obtained   before   an   alienation  could 
be  made  Q'^'"). 
He  must  not      A  limitation  imposed  upon  the  right  of  alien- 
ofiiisiund.  ation   among   the    Burgundians   was  that  a  man 
could  not  alienate   all  of  his  land.     He  must  re- 
serve some  of  it  for  his  descendants  {^^^).     An- 
other limitation,  which  obtained  among  the  Bur- 
After  divid-  gundians,   and   among    the    Bavarians    also,   was 
whh  his       that  a  man  could   not  give  away  his  land  until 
might  alien-  he  had  sharcd  it  equally   with   his   sons.     After 
''^^^^^' dividing  the  land  equally  with  his  sons,  he  could 
do  what  he  pleased  with  his  share  (^*^").    Although 
The  claim  of  the    principle    of    individual   property  was   very 

heirsmustbe  r>  ^^  -iji  ^    •  c    ^      •  ^ 

respected.  ^^^^^J  rccognizcd,  tlic  claiiiis  01  licirs  were  ad- 
mitted to  be  valid. 

Another  limitation  to  the   right  of  alienation, 
the  last  of  which  we   need  here   to  sj)eak,  was 


AMONG  THE   GERMANS.  75 

imposed  in  many  places  during  the  middle  ages. 

This  was   that  a   man   should,   before  selling  his 

land  to  a  stranger,  offer  it  to  his  neighbors  {^^). 

A  man  was   free   to   sell  his  land  if  he   pleased,  a  prior  light 

but   he    must    olier    it    to    his    neighbors    beiore  concded  to 

offering  it  to  any  stranger.      Properly  speaking, 

this  was  no  limitation  to  the  riij-ht  of  alienation. 

o 

The  neighbors  clahned  a  prior  right  of  purchase, 
and  this  rioht  was  conceded  to  them.  This  is  a 
better  way  of  stating  the  case.  Strangers  behig 
admitted  to  the  flimily  and  clan  villages,  as  gran-  The  cUm 

,  p  1        1  n  ^  n  svstembrok- 

tees  or  purchasers  oi  land,  were  founders  oi  new  en  up  by 
families,   new  clans,   therein.      The   villages   lost  tions. 
their  original  character  in  this  way.     They  might 
be  described  as  vici.      They  could  no  longer  be 
described  as  gcnealogice. 

There  was  another  mode  by  wdiicli  a  stranger  Prescription 

...  .         I       among  the 

gamed  access  to  land  and  an  inheritance  m  the  Germans. 
clan  village ;  that  was  by  undisputed  occupation 
or  prescription. 

A    prescriiDtive    title    to    land    was     admitted  a  presciip- 
among    the    Franks   at    the  time  of   Lex  Salica.  mittcd  by 

K,  .  ,  J^     ^  •  r  Lex  Salica. 

a    stranger,    migrans,  settled    on   a   piece    oi 

land    in    the   clan  village  [super  altcrwn),  and    no 

objection  was   made,  either   by  the  owner  of  the 

land   or  any  of  his  neighbors  [imus   vcl  aliciii  de 

ipsis  qui  in  villa  consistuni),  during   the    period    of 

twelve    months,    the    stranger    acquired    a    right 

of  property  and   inheritance  in  the   land  he  had 

appropriated,  and  became  a  regular  inhabitant  of 


7G  EARLY  HISTORY  OF  LAXD-HOLDING 

the  village,  —  sccurus  sicut  ct  alii  vicini  Q'^'^).  It 
will  be  remembered  how,  among  the  early  Lat- 
ins, the  ownership  of  land  was  acquired  by  pos- 
session during  two  years  instead  of  one  (^''^).  It 
Aprescrip-   was    agreed    among    the    Bur^i-undians    that   the 

tive  title  in  .  ° 

the  Lex       right  of  property   in   land    lying   in  byways,  as 

Burguudi-        ,..  •    ^       t      o  ^  ^   •     ^  •! 

onuni.  clistmguisned  Irom  the  highwaj's,  might  be  ac- 
quired by  two  years'  occupation  Q'^).  We  may 
infer  from  this,  perhaps,  that  the  right  of  prop- 
erty in  other  lands  could  be  acquired  in  a  year, 
or  less  than  a  year. 
The  ioro;-  Very   soou  after  this  we  meet  with   the  prce- 

gintaanno-  scripUo   trujhita  amiorum  of  the  Roman  law.     "We 
the  Burgun-  find  it  amoug   the   Burgundians   at  the  time  of 
vSgoTi'is.     their  permanent  settlement  in  Gaul;  also  among 
the  Visigoths.      Saepe  proprium  jus  alterius  longinqua 
possessio  in  jus  transmittit  alierius.     Nam  quod  xxx. 
quisqiie  annis  expleiis  absque  temporis  interrupiione  pos- 
sidet,  ncquaquam  nUerius  ....  amittere  potest  (^'^). 
A  five  years'       A  prescriptivc   title  was  admitted  among  the 

prescription  tit-i*  pt7--t->i 

among  the    Lombards  m  the  time  of  King  Kothar.     \Ve  read, 

in  his  edict,  that  after  five  j'ears  the   holder  of 

a  piece   of  land   is   not   obliged  to  fight  for  it; 

provided  he  brings  witnesses  to  say  that  he  has 

had  possession  of  the  land  during  that  time.     In 

Grimoald's  law,  which  comes  after  that  of  Rothar, 

we  read  that  if  any  one  possesses  his  house,  slaves, 

introduc-     and   land,  —  casam,  famiUam,  vel  terras, —  during 

thirty  yealrs'  thirty  ycars,  and  the  fact  is  generally  known,  he 

prescnptiou.  ^^^^    j^qj-    flgj^t   in   Order  to  maintain   possession 


AMOXG  THE   GER}*L\NS.  VT 

of  them,  —  ad  imgnam  non  'pervcniat  i^'"^).  It  is 
interesting  to  observe  here  how  the  German  cus- 
tom of  battle  and  the  Roman  prescription  come 
in  contact  with  one  another. 

Among   the    Germans   generally,  in    the   early  No  prescrip- 

.     1.1  •    1  i         r»  •  •  tive  title  ad- 

period,   the    right   oi    possession  w\as  m   no  way  mitted 
strengthened  by  the  lapse  of  time.     If  the  right  Gemlans^'^ 
was  questioned,  no  matter  when,  it  was  referred  ^^°^^    ^' 
to  the  issue  of  battle  (^'^). 

As   a   rule,   the    stranger   was    admitted    to   a  strangers 
right  of  property  in  clan  land   only   by  a  grant  tS  bj-^grant 
from  the    clansmen  who  were  the  owners  of  the  by  prescrip- 
land.     A   grant  of    this   kind    being    made,    the  ^°"' 
grantee  took  possession  of  the  land  and  was  per- 
mitted to  enjoy  it  undisturbedly.     His  title  was 
based   upon   the    grant  he   had   received,  rather 
than  upon  any  term  of  possession. 

Whether   the   stranger    acquired    the    right   of  The  result  of 

J         •  1  1        1     1  ,         /^       1  1  admitting 

property  in  clan  land  by  grant  ot  the  clans-  strangers  to 
men  or  by  prescription,  he  became,  in  virtue  ofp^pityin 
this  right  of  property,  a  member  of  the  village. 
When  he  died  his  descendants  were  members  of 
the  village  too,  in  virtue  of  the  rights  of  prop- 
erty which  they  inherited  severally.  So  we 
have  a  new  family,  a  new  clan,  introduced  into 
the  village.  Others  were  introduced  in  the  same 
way.  The  village  was  no  longer,  after  that,  the 
home  of  one  family,  of  one  clan,  descendants  and 
heirs  of  an  original  proprietor.  It  was  the  home 
of   several    clans.     It   was  no  longer  a  group  of 


78  EARLY  HISTORY  OF  LAND-HOLDING 

heirs  with  a  partly  divided,  partly  undivided  in- 
Thccian  vii- heritance.     It  was  simply  a  group  of  proprietors 

lagu  becoinus  piit  t-tii 

simply  a      With  Severalties  of  the  land,  or  undivided  shares 

grouj)  of  ,„ 

1.101)1  ietors.    thercol    ("°). 

Now  having  considered  the  clan  system  of  the 

Germans,  and  the  institution  of  the  clan  village, 

the  vicus  et  gencalogia^  w^e  will  go  on  to  consider 

The  institu-  the  institution  of  free  colonies.     We  have  already 

tion  of  free 

colonies.      spokcii  of  the  colouics  of  dependants  and  slaves, 
which  existed  in  the  earliest  time ;  we  have  now 
to  describe  the  origin,  in  a  later  period,  of  colo- 
nies of  free  proprietors. 
Village  life       Pcoplc   wdio    havc   Icamcd  to  live  together  in 
the  life  in     villages,  who  are   accustomed  to  daily  association 
farmsteads,   with  their  fcllows,  do  not,  as  a  rule,  care  to  give 
up  this  association  in  order  to  settle  in  isolated 
farmsteads.     This  was  the  case  with  the  men  who 
came  out  from  the   clan  villages  we  have  been 
describing,  to  seek  new  homes.     As  the  popula- 
tion of  these    villages  increased,  and    individual 
inheritances  became  small,  the  people  went  forth 
to  seek  new  inheritances  in  the    outside  world. 
They  did  not,  however,  as  a  rule,  settle  in  iso- 
lated farmsteads,  each  man  by  himself  with  his 
family,  his  dependants,  slaves,  and  cattle,  —  like 
their  ancestors  in  more  primitive    times.     A  life 
The  coio-     in  villages  was  generally  preferred.     The  colonists 

nists  niostlv  , ,  i        i      i  c        ^ 

poor  men. '  wcrc  mostly  poor  men,  who  had  no  means  oi  cul- 
tivating extensive  domains.  They  were  usually 
satisfied  with  thirty  acres  of   arable  land,  and  a 


AMONG  THE  GERMANS.  79 

moderate  amount  of  meadow,  pasture,  and  forest. 
The    colonists   had    only  a  few    slaves  and  a  lim- 
ited amount  of  stock,  as  a  rule.     Those  persons 
who  had  many  slaves,  and  large  flocks  and  herds,  The  rich 
contniued  to  estabhsh  themselves  ni  the  old  way,  settled  in 
in  isolated  farmsteads.     We  are  not  speaking  of  farmsteads. 
this  class  of  persons  here,  but  of  a  poorer  class, 
—  the  class  of   emigrants  who   were    driven   out 
of  the  clan  villages  by  the  pressure  of  the  popu- 
lation, and  the  lack  of  land.     These  men  looked  The  emi- 

.    .  grants  from 

about  and  found   others  to  joni  them;  and  they  the  clan  vii- 
went  forth  in  companies,  ten,  fifteen,  twenty,  or  in^ompa- 
more,  together.     When   they  had  found  a  place 
where   there  was  sufficient  good   land  for  them, 
they  built  houses  in  a  row  or  cluster  together,  institution 
and   then   proceeded  to    divide  the   land  among  lages,  — 

.1  ,  /-.  11  •    1  J      i  1  associations 

themselves.     One   man  had  no  more   right   than  of  proprie- 
another,  of   course,  in    the   land   which   all   had 
united  to   appropriate.     The  colonists  had   equal 
rights  in   the   land.     It  was   accordingly  divided  The^- take 

.     ,11  n  1  X  equal  shares 

mto  equal  shares,  one  tor  each  man.  In  some  of  the  land, 
cases,  when  the  colonists  brought  slaves  with 
them,  shares  of  the  land  were  assigned  according  xotaivays, 
to  the  number  of  householders,  so  that  he  who 
had  five  housed  slaves,  servi  cassafi,  in  the  vil- 
lage received,  in  addition  to  one  share  of  the 
land  for  himself,  five  other  shares  for  his  slaves. 
Thus  he  received  six  shares.  Some  of  the  pro- 
prietors may  have  received  more,  some  not  so 
many  {^'^').     We  will  suppose,  however,  that  the 


80  EARLY   HISTORY   OF  LAXD-IIOLDING 

colonists  had  no  cassafi,  that  the  lands  of  the  col- 
ony were  divided  into  equal  shares,  one  for  each 
proprietor.     In  this  way  we  may  legitimately  sim- 
plify om'  argument. 
The  division      If  the  land  was  level  and  nearly  equally  good 

was  made  in    .  i  •    i  r>  i  t     • 

the  same      m   cvcry  part,  which  often  happened  m  valleys 

colonies  of    bctwecn  the  hills,  and  in  generally  flat  country, 

each  man  took  one  long,  narrow  strip  of  the  land 

stretching  from  one  side  of  the  village  territory  to 

the  other,  or  radiating  away  from  the  village  in 

Why  strips  onc  direction  or  another.     Strips  of  land  were  pre- 

of  land  were 

preiem-d  to  fcrrcd  to  squarcs,  because  it  was  more  convenient 

squares.  i  i  r.  i  r«  i  i 

to  plough  a  lew  long  furrows  than  many  short 
ones.  The  ploughs  of  the  period  were  heavy  and 
awkward,  and  not  easily  turned.  Then  again,  if 
the  lots  assigned  to  the  different  proprietors  had 
been  equilateral  in  form,  it  would  have  been  diffi- 
cult to  place  them  all  at  an  equal  and  convenient 
distance  from  the  village.  When  the  lots  con- 
sisted of  long  strips  of  land,  they  could  be  dis- 
posed so  as  to  radiate  from  the  village,  and  every 
proprietor  had  some  of  his  land  near  the  village. 
Division  of  and  the  rest  at  a  distance  (^").  If  the  land  was 
sections.  ^  diversified  and  unequally  fertile  in  different  parts, 
however,  such  land  as  was  fit  for  tillage  was 
divided  mto  spaces  or  sections,  and  the  colo- 
nists took  equal  shares  in  every  section.  Or  else 
Acre  lots,  they  marked  off  upon  the  ground  certain  acre 
strips,  one  for  each  man,  and  repeated  this  process 
until  as  much  arable  land  was  marked  off  as  was 


AMONG  THE  GERMANS.  81 

needed.     These  modes  of  division  had  been  pre- 
viously  adopted   in    the    colonies   of    dependants 
and   slaves    (the   colonies  of    serfs),  as   \ve    have 
seen.     Indeed,  the  system  of  colonization   Avhich 
we   are  describing  originated    in    the    first   place 
among  the  serfs  who  were  distributed  in  village 
communities   upon   the    domains   of  the    ancient 
free   lords.     Then   when  clan  villages  arose  and 
the  freemen  went  out  of  these  villages    to  found  The  colony 
colonies  for  themselves,   the  colonies  of  depend-  model W^ 
ants  and  slaves  served  them  as  models  for  imi-  coLny! 
tation  (I'S). 

In  the  earliest  time,  the  portions  of  land  which  The  land  he- 
were  marked  off  for  distribution  among  the  pro- into  equal 
prietors  of  the  colony  were  probably  distributed  shares' were 
by  appropriation.     There  is  a  tradition  in   Eng- aiuonVthe 
land,  and  in  certain  parts  of  Germany  also,  that  l^^^^ 
in   early   times,  when  a  piece  of  land   had   been 
marked  off  into  equal  portions  according  to  the 
number  of  shareholders,  each  man    appropriated  Distribu- 

1  •  n  ^  tions  hv  .ap- 

his  portion.     When    the    portions  were  of  equal  propriatiou. 

value,  this  was  done  without  difficulty.  There 
was  no  ground  for  preference,  no  cause  for  dis- 
pute. When  the  portions  were  of  unequal  value, 
however,  disputes  were  inevitable.  According  to 
the  tradition,  the  strong  man  of  the  crowd  took 
the  portion  he  preferred,  and  if  any  one  else 
wanted  that  portion,  he  had  to  fight  for  it  (^'^). 
Although  this  is  merely  a  tradition,  it  agrees  per- 
fectly with  all  that  we  know  regarding  the  hold- 

G 


82  EARLY   HISTORY   OF  LAND-HOLDING 

ing  of  land  in  the  early  times.  We  have  already 
cited  many  passages  of  the  records  to  show  that 
primitive  property  was  simply  possession  main- 
tained, when  necessary,  by  force  (^^^). 

Distribu-  In  Order  to  prevent  the  disputes  and  the  fight- 

y  0 .  .^^  -which  we  have  described,  the  distributions 
were  often  made  by  lot.  In  this  way  every 
proprietor  had  a  chance  of  getting  some  of  the 
best  lands.  It  often  happened,  however,  that 
disputes  arose  after  the  distribution  by  lot  had 
been  made.  It  was  urged  by  those  who  had 
received  the  poorer  lands,  that  the  best  lands 
ought   not   to   be  held   by  the  same  persons  all 

Redistribu-  the  time.  A  redistribution  w^as  called  for  after  a 
while;  and,  unless  the  holders  of  the  best  lands 
were  able  to  resist  the  importunity  of  their 
neighbors,  a  redistribution  was  made.  This  was 
a  precedent  for  others;  and  redistributions  came 
to   be   made,  every  year,  or   from  time  to  time 

Community  in    the    coursc   of   years.     They    have    been   re- 

of  land  not  ,,  .,  ^  •i/^iiTi 

to  be  in-  garded  as  evidence  of  community  ol  hmd.  It 
redititrihu'"  ii^  •'^aid  that  the  land  was  owned  by  the  commu- 
tionsbyiot.  ^^j^^^^  that  it  was  distributed  by  the  community 
among  its  members,  for  temporary  occupation, 
by  lot.  This  was  not  the  case.  The  land  was 
owned  in  equal  shares  by  proprietors.  At  the 
same  time  the  land  could  not  be  divided  into 
equal  shares.  The  result  was  a  redistribution  of 
the  shares  every  year,  or  from  time  to  time  in 
the    course    of   years.     By   these    redistributions, 


A3I0XG  THE   GERMANS.  83 

the  claims  of  the  ditferent  proprietors  were  recon- 
ciled and  satisfied  (^^^). 

Another  expedient  suggested  itself,  which  served 

the  same  purpose.     The  different  lots  of  land  were  Tho  rotation 

,  .  .  mi  •  111  system. 

taken  m  rotation,  iiiis  custom  has  also  been  re- 
garded as  evidence  of  communism, —  erroneously. 
It  was  only  an  expedient  to  prevent  disputes  and 
fighting.  The  object  w^as  to  reconcile  rights  to  The  system 
equal  shares  with  shares  which  could  not  be  equal- 
ized. The  only  way  in  which  this  object  could  l)e 
accomplished,  satisfactorily,  w'as  by  a  rotation  sys- 
tem ;  accordins;  to  v^diich  the  holders  of  the  rio-hts 

7  CD  O 

took  the  shares  in  turn.     Far  from  being  evidence  Commimism 
of    communism,    it    shows    how    completely    the  ferred  from 

.,  „.,..,,  1    ^  T  1      ^    the  rotation 

principle  ot  individual  property  was  established,  system. 
Every  proprietor  had  a  certain  right  of  property. 
Then,  where  the  rights  of  the  different  proprietors 
came  into  conflict,  they  were  so  adjusted  that  no 
single  right  was  at  all  diminished,  but  each  one 
was  preserved  in  its  integrity  (^^^).  The  fields 
which  were  held  in  rotation  or  redistributed  by  lot 
were  regarded  as  individual  property.  They  have 
been  very  correctly  described  as  ^'  shifting  several- 
ties "  and  "  movable  fee-simples  "  (^^^). 

The  arable  land  of  the  colony  being  divided,  the  Tin- grass 
question  arose  whether  the  grass  land  should  be  free  coiouy. 
divided  also,  or  held  in  common.  Every  man 
could,  in  the  early  time,  have  his  share  of  the 
grass  land  divided  off  and  assigned  to  him,  if  he 
pleased  ;  but  the  colonists  usually  preferred  to  hold 
the  land  in  common. 


84 


EARLY   HISTORY   OF  LAND-HOLDINa 


Stinted 
meadows. 


Lot  mead- 
ows. 


Common 
enclosures. 


When  the  grass  was  in  a  condition  to  be  cut,  the 
viHagers,  or  their  servants,  went  out  and  cut,  each 
man  as  much  as  he  wanted,  unless  the  amount  of 
the  grass  was  Hmited.  In  that  case  each  man  took 
off  a  certain  number  of  loads,  one,  two,  three,  or 
more  (^^).  When  the  grass  was  better  in  some 
places  than  in  others,  the  land  was  cut  up  into 
sections,  and  a  portion  of  each  section  was  assigned 
to  each  proprietor.  The  portions  of  the  sections 
were  usually  assigned  by  lot.  Such  a  division  was 
not  necessarily  permanent.  In  many  cases  there 
w^ere  redistributions.  We  have  then  what  have 
been  described  as  "  lot  meadows."  Before  the 
grass  was  cut,  the  proprietors  met  together  and 
there  was  a  drawing  of  lots,  by  which  means  the 
portions  of  land  in  the  different  sections  of  the 
meadow  were  assigned  to  different  persons  {^^). 

AYhen  the  grass  land  was  enclosed,  the  enclosure 
was  built  by  the  proprietors  in  equal  shares,  each 
man  being  responsible  for  the  portion  put  up  by 
him.  The  arable  land  was  enclosed  in  the  same 
way,  unless  the  proprietors  enclosed  their  portions 
severally  (^^^).  As  soon  as  the  crop  either  of  grass 
or  ccrain  had  been  removed,  the  enclosures  were 
usually  thrown  down,  and  the  animals  cauie  in 
upon  the  close-cut  turf  or  stubble,  from  the  com- 
mon pasture  (^^"). 

Most  of  what  has  been  said  of  the  grass  land 
may  be  said  also  of  the  pasture  and  forest  lands. 
Every  proprietor  could,  in  the  early  time  at  least, 


AMONG   THE   GERMANS.  85 

have  his  share  divided  off  and  assigned  to  him ; 

but  it  was  quite  customary  to  leave  the  lands  undi-  The  pasture 

and  I'orest 

vided,  to  be  held  m  common.     When  there  was  usually  held 

in  common. 

plenty  of  pasture,  every  man  turned  out  as  many 
animals  as  he  had  ;  but  when  the  pasture  was  lim- 
ited in  extent,  and  there  was  not  quite  enough  of 
it  for  all  the  animals  in  the  village,  the  number 
which  each  man  might  turn  out  was  limited.     He  stinted 

11       pastures. 

could  turn  out  uve,  ten,  or  twenty,  a  number  de- 
termined by  his  right  of  property  in  the  pasture. 
When  the  rights  were  all  equal,  every  man  turned 
out  the  same  number  (^®^). 

The    enjoyment  of    the    undivided    forest  was  The  com- 
usually  unregulated.     Every  man  cut  what  w^ood 
he  wanted,  and  had  hunting  and  fishing  ad  lihl- 
ium  (^s^). 

It  is  important,  in  this  connection,  to  note  the 
fact  that  in  the  clan  villages,  as  well  as  in 
the  colonies  which  were  derived  from  them, 
the  meadow,  forest,  and  pasture  lands  were  fre-  Severalties 

.  1  •    1  ,  "fteu  held 

quently  divided    into   severalties,   which,   though  in  conimon, 

1    •  11  1      1  1  ^y  being 

they  were  severalties,  were  nevertlieless  held  uueuciosed. 
in  common,  from  the  fict  of  being  unenclosed. 
Boundaries  were  fixed  by  corner  stones,  or 
marked  trees ;  but  they  did  not  prevent,  and 
were  not  intended  to  prevent,  trespassing.  Men 
and  animals  ranged  freely  over  lands  so  divided ; 
except  over  grass  lands  during  the  time  before 
the  grass  was  cut,  —  in  Irmpore,  or  ad  tcnipu.'i,  as 
they  used  to  say  (^^).     Even  in  the  time  of  Lex 


86  EARLY   HISTORY   OF  LAND-HOLDING 

Grasslands  Salica,  the  grass  lands  were    often  divided   into 
severalties    Severalties.      This    may    be    inferred    from    the 

in  the  time  .  .  it  v 

of  Lex  Sa-  passage,  SI  qms  pmto  alicno  secavent  opera  sua  p<?r- 
dat  (^^^).  Boundaries  are  often  mentioned  in  con- 
nection with  the  grass  lands  in  the  documents. 

Severalties        In  regard    to   the    pasture  land :    wlien  it  was 

of  pasture  ^        -\       c^i'    •     •  i  tit  •  ii  i 

land  held     marivcd  ott  mto  severalty  holdings,  it  seldom  liap- 


m  common. 


pened  that  these  holdings  were  enclosed  so  as  to 
include  the  animals  belonging  to  the  proprietors. 
The  extent  of  each  man's  land  was  considered,  and 
its  productive  capacity  estimated.  lie  was  then 
said  to  own  a  pasture  for  twenty,  thirty,  forty, 
more  or  not  so  many  animals,  of  one  sort  or 
another;  and  he  turned  this  number  of  animals 
out  upon  the  open  pasture.  There  they  grazed  at 
large  over  the  land  of  their  owner,  and  over  the 
lands  of  other  proprietors  as  well  (^•'-). 

In  regard  to  the  forest  land  :  when  it  was  di- 
vided into  severalties,  limits  were  fixed  by  marks 
upon  the  trees.     Then  no  man  was  allowed  to  cut 
live  wood   except  within   the  limits  of  his    own 
Severalties    land  i^'^'^).     Evcu  ill   the   time  of  Lex  Salica,  the 

of  forest  ..  ... 

land  in  the   forcst  land  was  often  divided   into  severalties  m 

time  of  .  ,  ,  .  .  ,     .  , 

Lex  Salica.  tliis  Way.  i  lie  silva  aliena  is  mentioned  in  the 
passage  De  fiiriis  diversis.  The  later  laws  and 
records  abound  in  references  to  forest  severalties. 
The  references  to  undivided  and  common  forests 
are,  indeed,  comparatively  rare  Q^). 

It  is  evident,  from  the  frequent  reference  in  the 
records  to  severalties  of  meadow,  forest,  and  pas- 


AMONG  THE   GERMANS.  87 

tiire  land,  that  the  formula  cum  prafk,  pasculs,  silris,  The  so- 

1  •    1      •  11  11  1  •       •  called  ^;- 

etc,  which  IS  regularly  appended  to  descriptions  me/iri  lor- 
of  landed  propert}',  must  refer  to  property  held  in 
severalty,  as  well  as  to  property  held  in  common. 
It  is  often  assumed  that  this  formula  refers  to 
lands  helono-insc  to  the  different  communities, — 
lands  in  which  individuals  had  merely  rights  of 
enjoyment.  The  assumption  is  perfectly  arbitra- 
ry, and  it  is  erroneous  (^^^).  In  the  first  place, 
there  is  no  evidence  to  show  that  any  lands  were  No  lauds 

owned  by 

owned   by  the  communities  in   this  way,  and,  m  eomiiuini- 

1  •  •  1  1  titii. 

the   second  place,   there   is  no  evidence  to  siiow 

that   individuals    held    rights   in    land    from    the  No  rights  in 

communities,  in  the  early  time  of  which  we  are  (luired  from 

,  .  -  couiniuiii- 

speaking.     There    is    evidence,   on   the   contrary,  ties,  in  the 

11  n  •  1  1  1  i  1      i  1  early  time. 

and  plenty  of  evidence,  to  show  that  meadow, 
pasture,  and  forest  lands  were  quite  commonly 
held  in  severalties,  as  private  property ;  that, 
when  this  was  not  the  case,  they  were  held  as 
undivided  property,  to  be  divided  or  appropri- 
ated as  occasion  arose ;  or  else  in  undivided 
shares  proportioned  to  the  number  of  house  lots 
or  arable  lots,  or  to  the  extent  of  arable  lands, 
held  in  severalty.  As  to  rights  of  enjoyment 
upon  unenclosed  lands,  they  were  either  unregu- 
lated, or  else  they  were  determined  with  reference 
to  rights  of  property  vested  in  individuals  (^^'). 
Rights  of  enjoyment,  both  limited  and  unlim- 
ited, were  sometimes  alienated.  In  other  cases 
they   were     acquired     l)y     prescription.      Unless, 


88  EARLY  HISTORY   OF   LAND-HOLDIXG 

however,  a  right  of  property  in  the  lantl  was 
conveyed  or  acquired  at  the  same  time,  upon 
which    the    right  of    enjoyment    could    rest,   the 

Eights  of  right  tooli  the  form  of  an  easement  or  profit  in 
alieno  solo,  —  wliat  is  known  as  a  '•  riglit  of  com- 
mon," in  the  English  law.  As  the  proprietor- 
ship of  the  land  was  vested  in  the  members  of 
the  community,  and  not  in  the  community  as  a 
body  (the  evidence  of  this  has  been  given),  all 
easements  and  profits  a  prendre  were  acquired 
by  grant  of  one  or  more  of  the  land-owners,  or 
else  by  prescription.  It  was  only  in  later  times 
—  when  rights  of  property  belonging  to  indi- 
viduals were  usurped  by  the  community,  when 
rights  of  the  imiversi  were  gathered  into  a  right 
of  the  iiniversitas  —  that  rights  of  enjoyment  in 
common  lands  could  be  acquired  from  the  com- 
munity (^^').  The  community  had  no  rights  to 
grant,  in  the  early  time  of  which  we  are  speak- 
ing; and  the  rights  which  it  afterwards  acquired 
were  derived  from  individuals,  —  by  concessions 
on  their  part,  or  by  usurpations  on  the  part  of 
majorities.  The  origin  of  corporate  rights  is  of 
comparatively  recent  date. 

This    is    perhaps   a   digression,   however.     We 

Equality  of  w^crc  descHbing  the  colonies  which  were  derived 

property  in  .  .  i  •    i        ji 

the  free  col-  I  rom  thc  cJaii  villages;  m  winch  the  owner- 
v.'ii'tedby  f^hip  of  the  laiul  was  distributed  in  equal  shares. 
tion^oFtiic  This  equality  existed  only  for  a  short  time.  The 
itaiice.^"^*^^  first   proprietors   in    the    colonies   died,   and   the 


AMONG   THE   GERMANS.  89 

shares  -which  they  had  severally  owned  passed  to  The  original 
their  descendants,  to  be  divided  and    subdivided  to  be  di- 
among  them  (^°^). 

The    original    shares    were    usually   preserved,  The  original 

1  -i  IT'-  CI  -n  shares  pre- 

however,  as  integral  divisions  oi  the  village  ter-  served  as  in- 
ritory.     They  were  very  seldom  confounded  with  ions' of  the" 
one  another  (^°^).     An  inheritance  in  the  village  toryf*^ 
consisted  regularly  of  one  of  the  original  shares, 
or  a  fraction  of  a  share ;  or  if  an  inheritance  Avas 
increased  by  gift,  or  by  purchase,   or  otherwise, 
it  might  consist  of  several  of  the  original  shares, 
or  fractions  of  them.     The   number  of    proprie- 
tors  in    the    village   increased    and    diminished ; 
but  the  original  shares  remained.     They  served  The  heirs  in 

•  Gticll  slitirG 

as  bonds  to  bind  the   proprietors  into  a  number  were  co-pro- 
of groups,  all  the  owners  of  a  single  share  being  ^'"'^  °^''" 
classed  together  as    co-proprietors   therein.     The 
proprietors  of  the   village   were   thus  distributed 
in  little  land  companies,  so  to  speak  (™).     Within 
these    companies    the  rights  of  individuals   were  IIo^v certain 

.  nil    el''nit'nts  of 

sometimes    seriously    invaded    and    conlounded,  comnnmism 
and   certain   elements  of  communism    introduced  themselves 
themselves  here  and  there  into  the  life  of  the  vil-  lage  life, 

1  m  •  1  p  after  a  time. 

lage.     ihey  were  in  no  case,  however,  so  lar  as 
we  know,  a  primitive  feature. 

There  w\as  a  very  important  difference  between  Diiference 

1  ••11  -n  11  1^  fp  between  the 

the  original  clan  villages  and  the  colonies  oi  tree- dan  villages 

1  •    1  i.  i.    r  ,\  rpi  1  -1    ""'1  file  free 

men  which  went  out  Irom   them,     llie  clan  vil- colonies. 
lage  was  in  all   cases   founded  by  an   individual. 
It  was  a  group  of    descendants  and    heirs    upon 


90  EARLY   HISTORY   OF  LAXD-UOLDING 

a  partly  divided,  partly  undivided  domain.  The 
village  was  essentially  genealogical  in  its  char- 
acter. The  colonies  which  were  derived  from 
the  clan  villages  were  not  foimded  by  indi- 
viduals, but  by  groups  of  individuals;  and  they 
were  not  necessarily  related  to  one  another  as 
kinsmen.  The  structure  of  these  colonies  was 
therefore  not  genealogical.  Instead  of  having 
one  group  of  heirs  in  the  village,  we  have  sev- 
eral or  many  groups,  descendants  of  the  associate 
founders  of  the  village.  The  village  was  the 
home  of  several  families,  several  clans. 

Dionysius  says  of  the  Romans,  under  Servius 
(Pv\ai  yevL-  Tullius,  that  they  were  distributed  in  cftvXal  ye- 
\ai  TOTviKai.  viKai  aud  (f)v\al  TOTTLKat,  —  genealogical  and  topi- 
cal tribes  P^).  We  might  describe  the  German 
clan  villages  as  genealogical  tribes,  to  distinguish 
them  from  the  colonies,  in  which  the  members 
were  associated  rather  as  neiarhbors  than  as  kins- 
men.  In  the  clan  villages  the  bond  of  union 
was  blood,  i.  e.  descent  from  a  common  pro- 
genitor. In  the  colonies,  the  bond  of  union 
was  neighborhood.  The  colonists  were  associated 
topically,  rather  than  genealogically. 

There    was    another    difference    between    the 
clan  villa  o-es  and  the  colonies.     When  the  mem- 

o 

bers  of  the  clan  villa o;es  went  out  to  found 
colonies,  they  were  very  often  joined  by  men 
of  alien  extraction.  The  inhabitants  of  the  colo- 
nies   were    derived    from    many    nations.     They 


AMONG  THE  GERMANS.  91 

were  a  more  or  less  mixed  population.     In  the  The  popuia- 
clan  villages  the  descent  from  the  progenitor  of  colonies  was 
the  nation   was   clear  and    nn questionable.     The  mixed. 
pure    blood  of  the    nation    was  to    be  found    in 
the    clan    villaii:es,  rather   than    in    the    colonies. 
The  members  of  the  clan  villages   gained,  from 
this  fact,  more  or  less  prominence  and  influence. 

There  was  another  reason  why  the  gcnealogi-  Anotiier  rea- 
cal  or  clan  villages  gained  a  predominance  overpredomi- 

1  1        •  T  1  1  -n  1  1       nance  of  the 

the  colonies.  In  the  clan  village  we  have  the  dan  vii- 
increase  of  one  family  only.  The  inhabitants  ° 
of  the  colony,  however,  represented  the  increase 
of  several  or  many  families,  —  the  families  of  the 
original  colonists.  The  colonies  were  apt,  there- 
fore, to  be  more  populous  than  the  clan  villages. 
Property  was  distributed  among  a  larger  num- 
ber of  persons.     The  colonies  were  inhabited  by  The  popuia- 

f,     ,       tion  in  the 

a  poorer  class  of  people.     The  rich  men  of  the  colonies  was 

111         111P         •        1  1  -n  apoorpopu- 

nation  would  be  looked  tor  m  the  clan  villages,  lation,  as  a 
rather  than  in  the  colonies  sent  out  from  them. 

The    state    consisted,   then,  of   many  villacj-es,  The  state  of 

...      the  early 

centralized  by  the  presence  of  certain  chief  vil-  Germans. 
lages,  —  the  genealogical  villages,  in   which    the 
noble  or  dominant  families  resided  {^^^). 

The  undivided  forest  or  waste  land  which  lay 
between  the  villages  which  we  have  been  de- 
scribing was,  throughout  the  early  period,  sub- 
ject to  appropriation  by  the  freemen  of  the 
nation.     Colonies  of  slaves  or  serfs  were  set  out  Colonies  of 

1  •      1         1         mi  Ml  t^     r-  slaves  and 

upon  tins  land,     ilie    villages  oi    ireemen    were  serfs. 


92  EARLY  HISTORY  OF  LAXD-HOLDING 

usually  surrounded  by  such  colonies.  The  in- 
heritance in  the  clan  village  was  seldom  very 
extensive.  In  the  free  colony  it  was  often  very 
limited.  A  few  slaves  attached  to  the  house- 
hold —  scrri  dumimci  or  mancijna  in  domo  —  were 
usually  able  to  cultivate  all  the  land.  It  often 
happened,  however,  especially  in  the  early  time, 
that  there  was  unoccupied  forest  or  waste  land 
beyond  the  territory  of  the  clan  village  or  free 
colony.  Upon  such  lands  the  clansmen  and 
free  colonists  set  out  communities  of  slaves  or 
serfs,  —  communities  of  tenants,  as  distinguished 
The  free  froui  the  Communities  of  proprietors.  The  free- 
rounded  by  men  in  the  clan  villages  and  other  free  villages 
serfs°'^^^  were  thus  able  to  enlarge  their  inheritances. 
The  slaves  who  were  sent  out  into  the  tenant 
colonies  are  described  as  mancipia  in  vUUs  manen- 
tihus,  to  distinguish  them  from  the  mancijna  in 
domo,  above   referred  to  (-*^^). 

Very  often  several  freemen  joined  together  to 
The  serf  vii-  set  out   a   tcuaut    colouy.     In   such   cases,   each 

lage  some-  ^  ^  •  -i  ^ 

times  found- one    tooK    sharcs    ni    the    colony, — mansi,   cum 

ed  by  several  ,  .         .,    ,  ,. 

freemen.  campis,  praiis,  pascuis,  suvis,  etc., —  accordmg  to 
the  number  of  tenants  he  contributed  to  it. 
House  lots  and  aral)le  lots  being  occupied  ac- 
cording to  the  number  of  tenants,  one  house  lot 
with  one  arable  lot  being  assigned  to  each  one, 
he  who  sent  out  ten  tenants  had  ten  house  lots 
with  ten  arable  lots,  while  he  who  sent  out  five 
tenants  had  five  house  lots  "vjith  five  arable  lots; 


AMONG  THE  GERMANS.  93 

and  so  on.  The  araljle  lots  were  cut  out  of  the 
imclivided  meadow  and  pasture  land,  which  was 
held  by  the  cultivators  in  equal  shares,  by  the 
lords  according  to  their  respective  rights  of 
property,  determined  in  the  manner  described. 
He  who  owned  ten  house  lots  {mami),  or  ten 
arable  lots  {hubae),  owned  also  ten  shares  in  all 
the  other  lands,  —  meadows,  pastures,  forests 
(pratis,  pascids,  silri-s).  He  who  owned  only  five 
house  lots  or  arable  lots  owned  only  five  shares 
in  the  other  lands  (-^^). 

The  clan  villages  and  free  colonies  were  dis- Free  villages 
tmguished  from  the  colonies  of  dependants  and  lages. 
slaves — the  tenant  colonies  —  very  much  as  the 
early  Greek  and  Latin  towns  were  distinguished 
from  the  communities  of  agricultural  laborers 
which  Avere  established  round  about  them.  The 
free-lords  in  the  free  villages  correspond,  in  many 
respects,  with  the  yepovreq  of  the  Greek  town,  the 
patres  of  the  Latin  town.  Li  some  of  the  free 
villages,  where  conditions  and  circumstances  per- 
mitted a  natural  growth  and  development,  there  Tendency 

towards  a 

arose  a  civic  life  not  at  all  unlike  that  of  early  civic  life. 
Greece  and  Italy  (''^■^).     Li   most   cases,  however,  The  tenden- 
it   was  prevented.     Li    the    course  of  wars  «'ind  |',^ ^'iJoyt^*^ 
conquests,  most   of   the  free    villages    were    con- ^'^'*'^^' 
verted  into  villao:es  of  tenants,  or  ordinary   ao-ri- ?^'^^  ?'t*^°''" 

o  '  JO        tion  between 

cultural  communities.     Li  many  cases  the  distinc-  ^^^^'  '^"'''  y^^* 

^  lages  and 

tion    between    these    ori<nnally  free  villaii-es  and  f ''f  v'^i^s'^s 

°  *^  O  lost  during 

the  villa'^es  of  serfs    was  lost.     Who  can  say,  for  <''''  Middle 

°  *^ '  Ages. 


94  EARLY  HISTORY  OF  LAXD-HOLDING 

instance,  whether   the    Gelwfei'scliaftm   along    the 
Saar   and    the  Mosel    were,  in    their   origin,  free 
villages  or  dejDendent  villages  (^)  ? 
Origin  of         It   was   customary,  even   in   very  early  times, 

tenures  in      p  y  n     t    i     i       n 

perpetuity.    lor    the    alloduil   lords    to    make    grants  of  more 
or  less  extensive  farms  to  dependants  and  slaves, 
—  to  them  and  to  their  descendants,  upon  con- 
dition of  a   regular  annual  payment  of    certain 
dues.     In   one  of  our   earliest  formulae,  we   have 
described   the   grant   of    land   to  a  slave    or   de- 
pendant {^8crvo  suo,  gamido  ^uo),  —  to   him  and   to 
his    descendants    in    perpetuity,   upon    condition, 
except  when  the  jus  jirop^ietarmm  was  conceded, 
of  a  regular  payment  of  rent,   from  the  increase 
of  stock  or  from  the  produce  of  the  fields,  —  sub 
7'ecMitns   ierrae    vel   pascuario   aid  agmrio  (^'^").      It 
was,  of  course,  merely  a  tenancy   at   will   which 
a  serf  enjoyed.     It  was,   however,  a  permanent 
and  hereditary  tenancy  by  custom.     As  long  as 
Tenants  not  tlic   lord   and   his  successors  got  their  dues  from 
long  as  they  the    land,  the    tenants    were    rarely    evicted,     A 
tomaryYu'^s  l^w  was  passcd  in  the  reign  of  William  the  Con- 
or services.    q^gj-Qj.    ^q    prevent    evictions,  —  ncc    licet   dominis 
7'emovere  colonos  a  ierris  dummodo  dcbita  servicia  per- 
solvant  (^°^). 
House  com-       The  first  tenant  died.     His  sons  and  grandsons 
tenants.       took    the   land    and    cultivated    it,  and    paid  the 
rent  to  the  landlord  or  landlords,  for  there  might 
be  several  landlords,  heirs  of  the  grantor  of  the 
tenure,  or    assignees.     House    communities    fre- 


AMONG  THE  GERMANS.  95 

quently  arose,  —  associations  of  tenants  living 
too;etlier  in  one  house  and  lioldino;  the  hind 
in  common,  heirs  with  an  undivided  inheritance. 
Such  communities  existed  in  many  parts  of  France 
and  Germany  during  the  Middle  Ages  (-^^). 

"When  a  family  had  so  increased  in  numbers 
that  it  could  not  be  contained  in  one  house, 
new  houses  were  built  and  the  members  of  the 
family  distributed  themselves.  The  land  was 
then  divided  among  the  heads  of  the  different 
households,  and  each  one  received  a  share,  — 
an  inheritance  for  himself  and  his  descendants. 
Then  we  have  a  clan  village  of  tenants  in  place  cian  villages 

PI  -J.  iTf       1  1  ^  of  tenants. 

of  a  house  community.  We  have  examples  oi 
such  villages  upon  the  so-called  vavassoriae  in 
Normandy  {^^^). 

These  clan  villages  of  tenants  resemble    very  cian  villages 
closely   those  of   the  ancient  allodial  proprietors,  not  to  he 
which  have    been  described.     The   divisions   and  with'th"  clan 
distributions  of  land  were  made   upon  a  similar  pl-opfieto'rs. 
principle,  and   a  good  deal   of  land   was  held  in 
undivided   shares ;  but   the   clan  villages  of  ten- 
ants must  not  be  confounded  with  the  clan  vil- 
lages   of   proprietors.     In    an    investigation   into 
the  history  of  land-holding,  it  is  of   the   utmost  Tenancy  to 

.be  carefully 

importance   to  keep  tenancy  and   proprietorship  cUstin- 

,,,..  •iir>  1  mi  f;ui  shed  from 

Clearly  distinguished  Irom  one  another.     Though  propvietor- 
they   be  cast  in  the  same  mould,  they  are  very""^' 
different   things.     In  regard  to  every  holding    of 
land  the  question  should  be  asked  :  Is   it  a  case 


96  EARLY  HISTORY  OF  LAND-HOLDING 

of  proprietorship,  or  is  it  a  case  of  tenancy  ?     If 
Casesof  ten- it  is  a  casc  of  tenancy,  it  must  not  be  used  to 

ancy  not  to  i         i  • 

bo  used  to    illustrate  the   history  of    proprietorship.     If  it  is 

illustrate  the  »  •    i         i  •        • 

history  of    a  casc  01  proprietorship,  it  must  not  be  used  to 
propne  oi     j]|^^^^,j^^g  ^j^^   liistory  of  tenancy.     Many  writers 

have  been  led  into   error  by  not  observing  this 
rule  (^").     We  do  not  deny  that  landlordship  was 
sometimes  converted  into    tenancy,  and  tenancy 
into   landlordship ;    but   that   is   no    reason   why 
they  should   not  be  distinguished  from  one    an- 
other.    From   the    fact  that   one  institution  may 
be    converted    into    another,   we    cannot    argue 
identity  between  them. 
iiow  propri-      Tlicrc  are  many  cases,  in  the  records,  of  land- 
converted  ^^  lordship  being  converted  into  tenancy.     By  war 
ancy.^"       ^^^  conquest  whole  populations  were  made  sub- 
ject and  tributary,  and  the  land,  with  the  owners 
By  conquest,  upoii  it,  was  divided  into  estates  for  the  conquer- 
ors.   The  owners  of  the  land  became  tenants,  the 
conquerors    became    owners  ("^^).     This   was   one 
way   in    which   landlordship  was   converted    into 
By  will  of    tenancy.     There  was  another  way      This  was  by 

the  proprie-  .  p     i        i        n       i 

tors,  i.e. by  a  voluutary  action  on  the   part  ot  the  landlords. 

a  voluntary    ^      ,  .  i       j  •  f         i 

surrender  of  It  Dccame  customary  m  very  early  times  lor  the 
ship.  ^'^  ^^  allodial  proprietors  to  surrender  their  lands  to 
the  king,  the  church,  or  one  of  the  great  lords, 
upon  condition  of  receiving  them  again  as  ten- 
ures, to  be  held  by  them  and  their  descendants, 
upon  condition  of  a  regular  annual  payment  of 
certain  dues  (-^^).  The  origin  of  this  custom  must 
be  explained. 


AMONG  THE  GERMANS.  97 

In  the  early  time,  tlie  land-owners  were  quite  The  institu- 

^  mi  1      1  T       1      •  •        ^^°"  °^  state 

free    irom    taxes,      lliey    held  then-  property   ni- taxes. 
dependently,  and    paid  no   dues  of  any  kind   on 
account  of  holding  it.     The  property  of  the  free-  No  such 

taxes  in 

man  was  alodiaUter  immuuis,  as  the  phrase  was  (^^*).  early  times. 
In  the  course  of  time,  however,  when  governments 
were  established,  and  when  the   authority  of  the 
people   was  intrusted  to  a  chief  or  king,  and  a 
council    of   great   men,    and    the   kings   and    the 
great  men  could  govern  with  the  consent  of  the  Taxes  im- 
people  taken  for  granted,  the  allodial  proprietors  IhrpeopiT 
found   themselves   taxed  for  one  purj)ose  or  an- i  great"°^ 
other ;   at  first  moderately,  but  more   and   more  ™^°* 
heavily   as  time  went  on.     The   chief,  with   the 
consent  of  the  great  men,  a   consent  which  was 
easily  obtained  by  means  of  the   special   grants 
of  immunity  to  be  described  presently,  laid  divers 
imposts  and  taxes  upon  the  allodial  proprietors, 
which,  in   most  cases,  they   felt  obliged  to  pay. 
The    rule    was   adopted    that   every   man    should 
hold  his  property  who  paid  his  taxes,  —  lit  sccurus 
quicumqiie  proprieiatem   suam  possideus  debUa   tributa 
80lV(d  (215). 

In   the    early   time    it   was   customary  for  the  Voluntary 
allodial  lords  to  make  offerings  of  food,  of  cattle,  the  chuffs 
and    of  grain,   to    their   chiefs.     The    fict   is    re- gatoiyMy^ ' 
corded    by    Tacitus,     He   is    careful    to   tell   us,  '^"^  *^"^' 
however,  that  these  offerings,  though  customary, 
were   voluntary;  —  mos  est  civitatibus  idtro  ac  viri- 
tim  confcrrc  princlpibus  vol  armentorum  vcl  frugumi^^^). 

7 


98  EAELY  HISTORY  OF  LAND-HOLDING 

The  offerings  were  volimtary.  Still  the}^  were 
customary,  and  it  is  probable  that  a  refusal  to 
observe  the  custom  was  unusual.  The  minds  of 
the  people  were  by  this  means  prepared  for  the 
imposition  of  a  regular  tax,  and  it  is  not  likely 
that  much  objection  was  made  to  it  when  it  was 
imposed,  unless  it  happened  to  be  particularly 
heavy  or  burdensome. 

There  was  a  regular  tax  levied  upon  the  pro- 
Taxation  in  duce  of'  the  fields  and  upon  the  increase  of  stock 

the  time  of     .  .  •  /    7      •  \    •       ^i         /  • 

ciiiothari.   {(igj'ana,  jxiscucu'ia,  vcl  dccimas  iwrcorum)  in  the  time 
ri",  in^h^*^    of  Chlotliar  I.     The  same  tax  was  probably  levied 
sixth  can-     |^^  Cliaribcrt :  jtrommt  ut  leges  consiietudinesqiie  novas 
populo  lion  infllgeret.     We  read  of  new  and  burden- 
some taxes  [dcscripiiones  novas  et  graves)  in  the  time 
of  Chilperic.     They  were  levied  upon  lands  and 
■  slaves  ;  — functiones  wfligehaniur  midtae^  iam  de  terris 
quam  de  mancipiis.     Among  other  taxes  was  that 
of  an  amphora  of  wine  upon  every  acre; — ^inam 
amphoram  vini  per  aripennem  ("^').     State  taxes  were 
instituted    and   maintained   generally  during    the 
Merovingian  and  Carolingian  period. 
The  grants        While   thcsc  taxcs  wcrc   being  levied    on    the 
date"Jro'm  '  pcoplc    at   largc,  thc   chiefs  and  kings  conferred 
LexSaTica.  g^auts  of  immunity  upon  the  great  men  among 
their  followers,  laymen  and  ecclesiastics.     Refer- 
ence is  made  by  Chlothar  I.,  in   a  capitulary  of 
the  year  560,  to  the   persons  who  had  received 
grants    of  immunity   from    his    grandfather,  his 
father,  and   his   brother.      This ,  takes   the    grant 


AMONG  THE  GERMANS.  99 

of  immunity  back  to  the  time  of  the  Lex  SaUca. 
Many  early  formulae  for  grants  of  immunity  have 
been  preserved.  In  other  cases  we  may  read 
the  grants  tliemselves.  A  great  many  of  them 
have  been  preserved  from  the  seventh  and  eighth 
centuries.  By  these  grants,  allodial  property  of 
the  ancient  type  [alodiaUler  immimis)  was,  as  it 
were,  re-created  (^^^). 

Sometimes   the    allodial   land-owners  who    had  immuuities 

.  .  1  1  i     were,  in 

been  made  subject  to  taxation  purchased  grants  some  cases, 
of  imnuuiity.  Erfker,  for  example,  in  one  of  ^^^'' 
our  records,  sets  aside  eight  acres  of  land  with 
which  to  purchase  an  immunity,  — 2^^'^  redemftione 
census,  qiiem  de  prefaia  hereditate  redere  amiis  singulis 
dcbui.  In  another  case,  a  group  of  land-owners, 
apparently  a  clan  village,  unite  to  make  up  a 
sum  of  nine  plenos  7nansos  cum  mancijnis  ....  ut  se- 
curi  essent  de  illo  censu,  quod  illorum  antecessores  nos- 
tris  antecessorihus  \_Tlludovici  Regis']  persolverunt  (^^^). 

The  effect  of   the   immunity  grants  was  very  Tiie  effect  of 
remarkable.     On  the  one    hand,  there  were    cer-  tyVraX."' 
tain  great  lords  paying  no  tax  upon  their  lands. 
On   the  other  hand,  there  was  the   mass   of   the 
people  paying  an  annual  and  often  very  burden- 
some tax.     The  result  was  that  the  estates  held  The  estates 
under  immunity  grants  sw^allowed  up  all  the  rest,  iniinunity 
The  property  of  the   people   at  large  was  gath-  foi"d  up'aii 
ered  into  the   hands  of  a  few  men.     The  hold-  ^^'^  ^''''^' 
ers   of   the    immunity  grants   said  to   those  who 
held  them  not,  to  those  who  had  to  pay  taxes  to 


100  EARLY   HISTORY   OF  LAND-HOLDING 

This  was  ac- the  kliig  ov  to  the  state:  "Give  us  your  lands, 

complished  ,  -n         •  ji  i        i 

bysubstitut-  and    we   will   give   them    back    to  you,  and  you 

n-nt'fora     sliall  pay  for  them  a  fixed   rent,  which  shall  be 

"^'^  '^■^'      less  than  the  state  tax,  and  unchangeable."     The 

argument  was  unanswerable.     By  it  the  mass  of 

the    people    were    led   to   convert   their    allodial 

estates  into  tenures,  themselves  into  tenants.     In 

this  way  the  allodial  landlordship,  which  through 

the  early   time  had   been   distributed   among  the 

people   at  large,  was  gathered  into  the  hands  of 

a  few  great  lords  (^°). 

The  class  of      In   readiuo-  the  monastic  records,  the    student 

small  propn-  °  ' 

etorsdisap-   should  obsorve  how  throuo-h  the  eio-hth  and  ninth 

pears.  ^  ... 

centuries  the  number  of  acquisitions  from  private 
persons  is  very  large,  while  after  the  beginning  of 
the  tenth  century  the  kings  and  great  nobles  seem 
to  l)e  the  only  benefactors  of  the  Church.  The 
explanation  of  this  is,  that  the  class  of  small  pro- 
prietors had  almost  entirely  disappeared.  They 
had  become  tenants  under  the  great  lords.  They 
were  no  longer  free  proprietors.  They  had  no 
longer  any  lands  to  give  away. 

When  the  allodial  proprietors  gave  up  their 
inheritances,  they  gave  them  up,  as  a  rule,  upon 
condition  that  they  should  continue  to  hold  the 
land,  and  their  descendants  after  them,  for  a 
certain  annual  rent.  The  amount  of  this  rent 
was  determined  for  all  time  in  the  terms  of  the 
original  contract.  Let  us  take  an  example.  In 
one    of    the    St.    Gall    documents  a   man  named 


The  origin 
of  the  free 
tenures. 


AMONG  THE  GERMANS.  101 

Wolverat    alienates    his    estate    in    the   mark    of Aniiiustra- 

tivc  C«1S6 

Chezzinwilare,  upon  condition  that  he,  and  his 
sons  legitimately  born  of  his  wife  Engilsinda, 
and  all  their  descendants  [Icgitima  procreatio) 
shall  hold  the  land  for  a  rent  of  one  denarius 
every  year.  In  case  the  heirs  became  incom- 
petent to  hold  the  inheritance  (si  aidem  emmol- 
lierint  heredes  mci,  ut  proprietatem  siiam  continen  non 
possird),  they  were  to  be  decently  lodged,  fed, 
and  clothed,  and  the  land  reverted  to  the  mon- 
astery (-^).  Almost  any  number  of  similar  cases 
might  be  cited.  In  this  way  a  class  of  free 
tenants  came  into  existence.  They  were  distin- 
guished, on  the  one  hand,  from  the  class  of  free 
proprietors,  the   allodial  lords,  and   on  the    other  The  free 

r.  o  ^  •    tenants  to 

hand  from  the  mass  ot    serts  and  common  agri- be  distin- 
cultural  laborers.     The  rents  wdiich  the  free  ten- 1^^  the  free 

,  .  T  •  •         ii  T)roprietors 

ants   paid   were    in   many   cases,  as   in   the  case  Ld  from  the 

•,     J  1  •       1  mass  of 

cited,  merely  nominal.  serfs. 

As  soon  as  the  allodial  estates  had  been  con- 
verted into  hereditary  tenures,  in  the  manner  de- 
scribed, and  the  first  tenants  died,  and  the  heirs 
began   to   multiply   upon    the    tenures,  we  have 
house  communities  and   then   clan  villages   com- 
ing  into   existence.      They   are  house   communi- 
ties and  clan  villages  of  free  tenants,  to  be  dis-  House  com- 
tinguished    from    those    of    free    proprietors   and  and  clan  vii- 
those    of    serfs.      Free   tenancy  must    be    distin-  tenants.  ' 
guished   from   free  proprietorship,  and  also  from 
servile  tenancy  (^"^). 


102  EARLY  HISTORY  OF  LAND-HOLDING 

Summing         We  liavG  Seen  now  how  allodial  landlordsliip 

up  of  the 

argumeut.  was  gathered  away  from  the  people  at  large  into 
the  hands  of  a  few  great  lords,  laymen  and  eccle- 
siastics, —  in  the  course  of  wars  and  conquests, 
and  in  consequence  of  the  distribution  of  im- 
munity grants,  which  put  the  great  lords  into  a 
position  from  which  they  could  draw  the  mass 
of  small  proprietors  into  dependence  under  their 
over-lordship.  We  have  now  to  consider,  briefly, 
the  manner  in  which  the  further  distribution  of 
such  landlordsliip  as  remained  to  be   distributed 

Adoption  of  was  prevented.      We  will  speak  of  the  adoption 

the  princi-         ^      ^  •       •    ^         i  t        ^^       -i   ^  • 

pie  that       of  the   prmciple  that  landlordship  must   not   be 

landlord-  ,^,...  „  ,  „ 

ship  must     divided,  and  oi  the  institution  or  a  new  rule  oi 
vided.         inheritance  in  accordance  with  this  principle. 

The  division  and  subdivision  of  allodial  property, 
and  consequent  impoverishment  of  the  proprietors, 
—  results  of  the  law  of  inheritance  which  pre- 
scribed divisions  among  heirs,  —  were  prevented 
in  very  early  times  by  a  practice  which,  in  spite 
of  its  inconsistency  with  the  common  law,  spread 
One  heir      morc  or  Icss  everywhere.     According  to  this  prac- 

takesthein-     .  .  i         i  r>        -i        i  i  •  i 

heritance  to  ticc,  ouc  licir   tooK    the    lamily  homestead    with 
sionof        the  lands  attached  to  it,  while   the  other  heirs, 
if  there  were   any,   sought   their   fortunes   else- 
where, or  were  maintained  as  dependants.      The 
practice    seems    to    have    obtained    among    the 
This  was  the  Tencteri  in  Tacitus's  time.     We  read,  in  the  Ger- 
theTencten  mania,   that   among    these   people   the   household 
time.  {^joiatcs)  and  the  inheritance,  including  depend- 


AMOXa  THE   GERMANS.  103 

ants  and  slaves  (the  familia),  went  to  the  boldest 
and  best  son,  — fcrox  hello  ci  mcllor  (--■'^).  This 
curious  exception  to  the  general  rule  of  inher- 
itance {heredes  tamen  successoresque  sui  cuique  lihcri) 
established  itself,  probably,  very  much  as  a  sim- 
ilar custom  has  established  itself  recently  in  the 
mountain    country   of    Auvergne.     Although    ac-  a  modern 

.  ,     instance. 

cordino:  to  the  2:eneral  law  ni  France  a  man  s 
land  passes  to  all  his  children,  it  has  come  to 
be  considered  very  undesirable,  in  the  mountain 
region  of  Auvergne,  that  the  farms  should  be 
divided.  The  result  is,  that  one  child  usually 
takes  the  land,  while  the  others  go  off  to  seek 
their  fortunes  in  the  cities,  or  else  enter  the 
Church.  The  heir  who  is  best  fitted  for  country 
life  and  farmino;  is  the  one  to  whom  the  other 
heirs  resign,  voluntarily,  their  shares  of  the  in- 
heritance (^-^).  So  it  was,  probably,  among  the 
Tencteri ;  only  the  special  fitness  was  not  so  much 
a  fitness  for  farming  as  for  fighting.  Among  the 
Germans,  the  farming  was  regularly  intrusted  . 
to  serfs. 

We    can   imagine   how,  in    many   cases,  it  was  disputes 

^  ,  .       among  the 

difficult    to    decide   which  of  a   number  of  heirs  heirs. 

should    take    the    inheritance.     They   might   all 

be  equally  competent  to  hold  it,  and  they  might 

all   desire   to  do  so.     In  such  cases  it  is  probable 

that  the  rule  of  equal  division  was  reverted  to 

until    some    other   rule  —  the  rule  of  primoii-eni-  I'lstitution 

'■  '^  ol  jiriino- 

ture,  for  example  —  was   introduced.     According  ^'>"itiuc. 


104  EARLY   HISTORY   OF  LAND-HOLDING 

to  the  rule  of  primogeniture,  the  eldest  son  took 
the  inheritance,  unless  there  was  some  very  good 
reason  for  not  giving  it  to  him. 
Primogeni-  We  may  infer  from  the  words,  cxcipit  films,  non 
citus's  time,  ut  ccto'ci  maximus  natu,  scd  prout  fcrox  hello  ct  melior, 
in  the  Germania,  that  the  rule  of  primogeniture 
had  already  been  adopted  in  some  of  the  Ger- 
man clans,  in  the  time  of  Tacitus  (~^). 

The  rule  of   primogeniture  was  introduced  in 

most  cases   by   family   compacts,  wdiat   the    Ger- 

'Yh^Haus.   mans  call  Ilaiisgcsetze.     The    German   nobles  per- 

QCSCtZC* 

ceived,  at   an    early   time,  that,  unless   some   ar- 
rangement   was    made    by    which    their    estates 
and  lordships  would  remain  undivided,  the  power 
and    influence  of   their    families    would    depart. 
Agreements    were    therefore    made  among    the 
heirs  in  the  different  households,   that   the  fam- 
ily estates  should  not  be  divided.     Various  rules 
were  then  adopted  to  settle  the  question  of  suc- 
Primogeni-   ccssiou.     Among  them  the  rule  of  primogeniture 
uitimogeni-  was  generally   preferred.     The    right   of  inherit- 
^^'  ance  was  in  some  cases  conceded  to  the  young- 

est son,  in  which  cases  we  have,  instead  of  pri- 
mogeniture, what  has  been  called  ultimogeniture, 
what  is  commonly  called,    in    our   law,    Borough 
Primogeni-   English ;  but  the  rule  of  primogeniture  was  gen- 

ture  general-  i    /9or\ 

ly  adopted,   erally  adopted  {^'^). 

The  eldest  son  was,  usually,  the  best  fitted  to 
exercise  the  paternal  authority.  His  brothers 
were  commonly  men  of  less  experience,  or  young 


AMONG   THE   GERMANS.  105 

boys,  and  tlioy  did  not  oljject  very  mneli  to  re- 
signing their  inheritances;  especially  as  they 
-were  promised  a  maintenance  in  honor  and  plenty 
nnder   their   brother's   care.     As   they  grew  up,  Disinherited 

liGirs  receive 

they  often  received  grants  of  land  in  the  place  of  benefices. 
their  inheritances.      These  grants  took  the  form 
of  beneficiary  holdings. 

Thus  again  allodial  landlordship  vs;^as  gathered  The  effect  of 

.  in         ])rimogeni- 

away  from  the  many,  and  given  over  to  the  few.  tme. 
The  number  of  persons  disinherited  by  the  rule 
of  primogeniture  is  of  course  enormous.  We 
must  remember  that  by  disinheriting  one  man 
and  one  woman  we  may  disinherit  a  family,  a 
clan,  and  even  a  nation  of  descendants;  and 
when  several  persons  and  all  their  descendants 
are  disinherited  in  every  generation,  in  every 
family,  the  aggregate  of  disinherited  persons  be- 
comes, in  the  long  run,  inconceivably  large. 
They  are  thrust  down  into  dependence,  and 
even  into  servitude. 

It  is  not  at  all  surprising  that  nearly  the  whole  The  chief 

"   ,       .  ,       causes  which 

population   of  Western  Lurope  was,  durmg  the  brought  the 
Middle  Ages,  reduced  to  a  condition  of  depend-  large  into 
ence    or   serfdom.      It  was  reduced   to  this  con-  Lurservi- 
dition  in    the    course    of  wars  and  conquests,  in 
consequence  of  the  introduction  of  general  taxes, 
and    special    grants    of    immunity,  concurrently 
with    them ;    and    in    consequence    of  the   adop- 
tion of  the  rule  that  property  must  not  be  di- 
vided.    The    holders  of    immunity   grants    were 


106 


EARLY  HISTORY  OF  LAND-HOLDING 


Tho  people 
distributed 
into  three 
classes,  — 
benelicia- 


able  to  induce  the  people  at  large  to  convert 
their  inheritances  into  tenures,  by  lowering  rents 
below  state  taxes ;  and  when  the  principle  that 
property  must  not  bo  divided  was  adopted,  mul- 
titudes of  people  were  cut  off  from  the  inher- 
itances which  they  would  otherwise  have  ac- 
quired. AVhile  allodial  landlordship  became  in 
this  w^ay  concentrated  in  a  few  hands,  the  mass 
of  the  people  sank  into  positions  of  dependence, 

riGs   frcG 

tenants,  and  either  as  bencficiaries,  free  tenants,  or  serfs  (^^). 
These  were  the  chief  classes  of  tenants.  The 
highest  class  was  that  of  the  beneficiaries. 

The  beneficiary  tenures  were  commonly  held 
to  be  hereditary,  according  to  the  ancient  law 
prescribing  division  among  heirs,  through  the 
early  period  (^^^).  By  the  division  and  subdi- 
vision of  the  tenures,  however,  the  power  of  the 
tenants  was  very  rapidly  reduced,  until  it  was 
evident  that  their  importance  and  influence  in 
the  state  could  be  maintained  only  by  the  adop- 
tion of  the  principle  that  a  benefice  was  an 
indivisible  estate,  to  be  held  by  a  succession  of 
individuals.  The  rule  of  primogeniture  was  then 
introduced  among  the  higher  class  of  tenants,  in 
the  same  way  as  it  had  been  introduced  among 
the  allodial  lords  (^^^).  Where  it  was  not  intro- 
duced, where  the  old  rule  prescribing  division 
among  heirs  w\as  in  force,  the  beneficiaries  sank 
down  to  a  position  of  insignificance  C^^). 

The  clan  system  tends  naturally  to  pass  into  a 


Priniogcni- 
tiire  intro- 
duced 
among  the 
beneficia- 
ries. 


AMONG  THE  GERMANS.  107 

feudal  system.     The  disadvantages  of  an    indefi-  How  the 
nite  subdivision  of  inheritances  and  the  authority  L'^supj^iant- 
passing  with  them,  and  the  evils  of  insubordina-  dai  sySem." 
tion  in  the  community,  lead  inevitably  to  a  sur-  Need  of  sub- 

.  .  1    1       1   1  •  •      ordination 

render   of  inheritances    and  lordships   to   certain  in  the  com- 
individuals,    and  to  a  substitution    of  beneficiary  i„troduc- 
tenures  (for  military  service)  in  their  place.     Then  ['"'\°^ 

\  J  /  i.  benehciary 

the  beneficiaries,  in  order  to  preserve  the  power  iiouimgs. 
and  influence  of  their  families,  adopt  the  principle  The  struggle 
that  their  benefices  must  not  be  divided.     Then  bc'tJe^n  the 
the  chief  of  the  state,  the   person  in  Avhom  the  andT/f'^ 
sovereignty  is  vested,   adopts  the   principle  that^'^^^^^' 
this  sovereignty  must  not  be  divided.     Unless  he  The  sover- 
adopts  this  principle,  the  sovereignty  is  frittered  "fSe^fU-^ 
away    through    the    branches   of    the   sovereign 
family,  while  the  vassals  remain  rich  and  power- 
ful upon    their    undivided    estates.     The    process 
is  often  reversed.     The  chief  of  the  state  adopts 
the   principle  that  the  sovereignty  must   not  be 
divided,    hoping    in    this    way,   inasmuch    as    the 
estates   of  his   vassals  are   divisible,  to   secure  a 
predominance  for  his  family.     While    the   sover- 
eignty  remains   undivided,  the  benefices  are  di- 
vided and  subdivided,  and    the  beneficiaries  lose 
their  wealth  and  their  influence.     Then  the  bene- 
ficiaries, to  prevent  this,  have  to  adopt  the  rule  The  bene- 
that    the    benefice    must   not   be   divided.     It   is  be  divided. 
easy  to  see,  that,  if  the  sovereignty  of  the  state 
remains  indivisible,  while  the  beneficiary  holdings 
are  divided,  the  beneficiaries  soon  sink  down  into 


108  EAIILY   HISTORY   OF  LAND-HOLDINa 

the  class  of  agricultural  laborers  or  serfs.  The 
Conclusion,  feudal  sjstem  grows  out  of  the  clan  system  in  con- 
sequence of  a  need  of  subordination  and  govern- 
ment, which  leads  the  mass  of  free-lords  to  ffive 
up  their  independence ;  and  in  consequence  of  the 
desire  on  the  part  of  the  remaining  free-lords  to 
preserve  their  wealth,  power,  and  influence.  This 
desire  leads  them  to  adopt  the  rule  that  their  free- 
lordships  must  not  be  divided.  Secondly,  the 
feudal  system  grows  out  of  a  desire  on  the  part 
of  the  vassal  lords  to  prevent  the  free-lords  from 
acquiring  an  undue  predominance.  This  desire 
leads  the  vassal  lords  to  adoj^t  the  principle  of 
indivisibility  of  fiefs.  The  sovereign  lordshijD  of 
the  state  and  the  benefices  under  it  pass  then  to 
successions  of  individuals.  The  persons  who  are 
disinherited  in  successive  generations  sink  down 
into  a  third  or  fourth  order  of  tenants.  If  among 
these  tenants  inheritances  continue  to  be  divided, 
according  to  the  primitive  rule,  the  result  is  pau- 
perism and  servitude  (~'^^). 

It  is  not  our  purpose,  however,  in  this  essay,  to 
enter  into  the  history  of  the  feudal  system,  nor 
into  the  history  of  the  agricultural  communities 
which  did  not  flourish  under  it.  Having  consid- 
ered the  primitive  clan  system  of  the  Germans, 
its  growth  and  its  decay,  and  having  learned 
how  this  system  was  based  upon  the  principle  of 
private  property  and  the  princij)le  of  inheritance, 
rather  than  upon  any  principle  of  collectivity  or 


AMONa  THE   GERMANS.  109 

communism,  we  may  properly  bring  our  essay 
to  an  end.  The  history  of  land-holding  under 
the  feudal  system  is  a  very  large  and  a  very 
difficult  subject,  into  which  we  will  not  now 
enter. 


NOTES  AND  REFERENCES. 


Convinci  nemo  potest  judicio  sine  tcstibus  aut  scriptura. 

Capitulakia,  Lib.  YII.  204. 

We  give  here  a  list  of  the  original  sources  from  which  the 
conclusions  presented  in  the  preceding  essay  have  been  de- 
rived. The  abbreviated  titles  are  those  which  will  be  used  in 
the  notes  which  follow.  They  are  arranged  alphabetically, 
so  that  they  may  be  easily  referred  to.  The  list  does  not 
pretend  to  be  a  list  of  all  possible  sources  of  information. 
There  are  many  records  bearing  more  or  less  upon  the  subject 
of  our  inquiry  which  are  not  included  under  the  titles  given. 
The  Danish,  Norwegian,  and  Icelandic  records,  for  example, 
are  not  at  all  referred  to.  The  list,  though  incomplete,  will 
be  found  serviceable,  and  it  may  be  regarded  as  a  nucleus 
for  something  better. 

AiiixGDOX  Chron.  —  Chronicon  Monasterii  de  Abingdon.     2  vols. 
London,  1858.     8°.     Record  Commission. 

Acta  Murens. — Acta  Fundationis  Murensis  IMonastorii  Vindicata. 
Opera  P.  F.  Kopp.     Typis  Monasterii,  1750.     4°. 

AiSTULPH.  —  Aistulphi  Leges.     Lombard  law  of  the  8th  Cent.     In 
Corp.  Jur.  Germ,  and  M.  G.  H.  Leg.  IV. 

Alfred.  —The  Laws  of  King  Alfred.     A.  D.  871-901.     In  Thorpe 
and  in  Schmid. 

Alsat.   Dipl.  —  Alsatia   Diplomatica.      J.  D.   Schocpflin,  editor. 
2  vols.     1772.     Folio. 


112  EARLY  HISTORY  OF  LAND-HOLDING. 

Ampl.  Coll.  — Martcnc  et  Uurand  :  Vctcnim  Scriptorum  et  Monu- 

mentorum  ....  Amplissima  Collectio.    9  vols.    Paris,  1724- 

1733.     Folio. 
Angl.-Sax.  Ciikox,  — The  Anglo-Saxon  Chronicle.    A.  D.  1-1154. 

In  M.  II.  B.     Thorpe's  edition  is  perhaps  the  best.     Vol.  I. 

Texts;  Vol.    II.    Translation.     London,   18G1.     8°.     Record 

Commission. 

Arnsb.  Urkb.  — Urkundenbuch  des  Klosters  Arnsburg  in  der  Wet- 
terau.     Ludwig  Baur,  editor.     Darmstadt,  1851.     8°. 

Athelstan. — The  Laws  of  King  Athelstan.  10th  Cent.  In  Thorpe 
and  in  Schmid. 

Baed.  — Ilistoriae  Ecclesiasticae  Gentis  Anglornm.  Aiitore  Vene- 
rabili  Baeda.  A.  I).  G72-735.  In  M.  H.  B.  For  the  An- 
glo-Saxon version,  see  Smith's  edition.  Cambridge,  1722. 
Folio.  The  Miscellaneous  Works  were  edited  by  Dr.  Giles. 
6  vols.     London,  1843.     8°. 

Beter  Urkb. — Urkundenbuch   zur   Geschichte   der   Mittelrheini- 

schen  Territorien.      II.    Beyer,    editor.      3  vols.      Coblenz, 

1860-1874.     8°. 
BoDMANN.  —  Bodmann :     Eheingauische     Alterthumcr.      Mainz, 

1819.     4°. 
BoLDON  Book.  —  Boldon  Book.      A  Survey  of  the  Palatinate  of 

Durham.     A.  D.  1183.     In  Domesday,  IV. 

Bracton.  —  Ilenrici  de  Bracton  De  Legibus  et  Consuetudinibus 
Angliae  Libri  Quinque.  Edited  by  Sir  Travers  Twiss. 
5  vols.     London,  1878-1882.     8°. 

Brev.  Not.  Salzb.  —  Breves  Notitiae  Salzburgenses.  F.  Keinz, 
editor.     8°.     1869.     In  the  Juvavia  also. 

Brev.  Rer.  Fisc. — Breviarium  Rerum  Fiscalium.  A.  D.  800? 
In  Corp.  Jur.  Germ.  (11.  p.  141).  In  M.  G.  H.  Leg. 
(L  p.   176). 

Brev.  Urolfi. — Breviarium  Urolfi  Abbatis  de  Altaha.  A.  D. 
800?     In  M.  B.  XL 

Brittox.  —  Britton :  A.  D.  1291?  The  French  Text  carefully 
revised,  with  an  English  translation,  introduction,  and  notes. 
By  F.  M.  Nichols.     2  vols.     Oxford,  1865.     8°. 

Caesar.  — Caesaris  Commentarii  de  Bello  Gallico.     B.  C.  50. 


NOTES  AXD  REFERENCES.  113 

Capit.  de  Villis.  —  Capitulare  de  Villis.  A.  D.  800?  Among 
the  C'apitularia.  Sec,  however,  the  edition  with  notes  by 
Guerard.     Paris,  1853.     8°. 

Capitulauia.  —  C'apitularia  Rcgiim  Fraucorum.  In  Baluzius.  In 
tlie  Corp.  Jur.  Germ,  and  in  M.  G.  II.  Leg.  I. 

Cart.  Gloucest.  —  Ilistoria  et  Cartularium  Monasterii  Sancti  Petri 

Gloucestriae.      3   vols.      London,    1863-1867.     8°.     Record 

Commission. 
Cassiodorus.  —  M.  Aurel.  Cassiodori  Senatoris  Opera.     Gth  Cent. 

The  old  edition  of  Nivellius  is  perhaps  as  good  as  any.     Paris, 

1579.     Folio. 
Chart.    Sitiiiexse.  —  Cartulaire    de    1' Abbaye    de    Saint-Bertin. 

M.  Guerard,  editor.     Paris,  1841.     4°. 
Chart.  "Werth.  —  Chartularium  Wcrthinensc.    In  Leibnitz  Scrip.  I. 

p.  101.     Cf.  also  Lacomblct  Urkb.  I. 
Chkon.    Bexedictob.  —  Meichelbeck  ;    Chronicou    Benedictobura- 

num.     Sumptibus  Monasterii,  1753.     Folio. 
Chrox.    Petrob.  —  Chronicon    Petroburgense.      Curante   Thoma 

Stapleton.     London,  1849.     8°.     By  the  Camden  Society. 

Cnut.  — The  Laws  of  King  Cnut.     11th  Cent.     In  Thorpe  and  in 

Schmid. 
Cod.  Dipl.  Lubec.  —  Codex  Diplomaticus  Lubecensis.     I.  Urkuu- 

denbuchderStadtLiibeck.    Liibeck,  1843.    4°.    II.  Urkunden- 

buch  des  Bisthums  Liibeck.     Oldenburg,  1856.     4°. 
Cod.  Dipl.  Morav.  —  Codex  Diplomaticus  Moraviae.     A.  Boczek, 

first  editor.     10  vols.     Olomuch  and  Brunn,  1836-1878.     4°. 

Cod.  Dipl.  Ratisb.  —  Codex  Diplomaticus  Ratisbonensis.  In  Pez 
Thesaurus,  I.  Part  III.  Cf.  Ried  Cod.  Dipl. ;  also  the  Liber 
Probationum.     Ratisbon,  1752.     8°. 

Cod.  Dipl.  Siles.  —  Codex  Diplomaticus  Silesiac.  10  vols.  Bres- 
lau,  1857-1881.  4°.  See  especially  Vol.  IV.:  Urkunden 
Schlesischer  Dorfer.     Dr.  August  Meitzen,  editoi*.     1863. 

Cod.  Patav.  —  Codices  Traditionum  Ecclesiae  Pataviensis  (Passau) 
olim  Laureacensis.     In  M.  B.  XXVIII.,  XXIX. 

Cod.  Quedlixb.  —  Erath:   Codex  Diplomaticus  Quedlinburgeusis. 

Frankfurt,  1764.     Folio. 
Cod.  S.  Galli.  —  Urkundenbuch   der  Abtei   Sanct   Gallon.      Dr. 

Hermann  Wartmann,  editor.     3  vols.    Ziirich,  1863-1882.     4"^. 

G 


114  EARLY  HISTORY   OF   LAND-HOLDING. 

Cod.  Tkad.  Lunaelac.  —  Codex  Traditionum  Monastcrii  Lunaela- 
censis.  In  Pcz  Thesaurus,  VI.  p.  10;  also  iu  ^'oL  I.  of  the 
Uikb.  Land  o.  d.  Enns. 

Cod.  Trad.  Reiciiersberg.  —  Codex  Traditionum  Monasterii  Rei- 
chersbergensis.     In  ^'ol.  I.  of  tlie  Urkb.  Land  o.  d.  Enns. 

Cod.  Trad.  S.  Emmeram.  —  Codex  Traditionum  Sanct.  Emmeram- 
mensium.     In  Fez  Thesaurus,  I.  Part  III. 

Cod.  Trad.  Westph.  —  Codex  Traditionum  Westphalicarum. 
I.  Die  Ileberegister  des  Klosters  Frenckenhorst.  E.  Fried- 
lander,  editor.     Miinster,  1872.     8°. 

CoRB.  Trad. — Traditiones  Corbeienses.  Paul  Wigand,  editor. 
Leipzig,  1843.  8°.  Cf.  also  the  edition  of  Falke,  Leipzig, 
1752. 

Corp.  Jdr.  Germ.  —  Ferd.  Walter:  Corpus  Juris  Germanici  Anti- 
qui.  3  vols.  Berlin,  1824.  8°.  This  is  a  vcr}-  good  and 
cheap  edition  of  the  early  laws  and  formulic. 

CouTUM.  de  Nivernais.  —  Gu}^  Coquille :  La  Couturae  de  Niver- 
nais.     Edited  by  Dupin.     Paris,  18G4.     8°. 

CouTDM.  Gen.  —  Nouveau  Coutumier  General.  Coutumes  Gene- 
rales  et  Particulieres  de  France.  C.  A.  Bourdot  de  Riche- 
bourg,  editor.     4  vols.     Paris,  1724.     Folio. 

DiPLOMATA.  —  Diplomata  e  Stirpe  Merowingica.  Dipl.  e  Stirpe 
Arnulforum.  Dipl.  Spuria.  In  M.  G.  H.  Dipl.  Hannover, 
1872.     Folio. 

Domesday,  —  Tlie  Inquisitio  Tcrrarum,  or  Survey  of  England, 
made  In-order  of  AVilliam  tlie  Conqueror.  A.  D.  1086.  4  vols. 
London,  1783.     Folio. 

Domesd.  S.  Paul.  — The  Domesday  of  Saint  Pauls.  A.  D.  1222. 
Archdeacon  Hale,  editor.  Published  bj-  the  Camden  Soc. 
London,  1858.     8°. 

Du  Canoe.  —  Glossarium  Mediae  et  Infimac  Latinitatis.  Du  Cange, 
editor.  The  best  edition  is  that  of  Ilenschcl.  7  vols.  Paris, 
1840-1850.     4°.     A  new  edition  is  now  being  published. 

DuGDALE  MoNAST.  —  Mouasticon  Anglicanum.  Sir  "William  Dug- 
dale,  editor.    New  edition.     8  vols.     1817-1830.    Folio. 

Edgar.  —  The  Laws  of  King  Edgar.  A.  D.  959-975.  In  Thorpe 
and  in  Schmid. 


NOTES   AND   REFERENCES.  115 

Edwakd.  —  The  Laws  of  King  Edward  the  Elder,  A.  D.  1)01-924. 
In  Thorpe  and  in  Schniid. 

Edw.  Coxf.  —  Laws  of  King  Edward  the  Confessor.  11th  Cent. 
In  Thorpe  and  in  Schmid. 

Ethelbert. — The  Laws  of  King  Ethelbert.  Early  7th  Cent.  ?  In 
Thorpe  and  in  Schoiid. 

ExoN.  Domesday.  —  Exon.  Domesda^y.  A  Survey  of  the  Counties 
of  Wilts,  Dorset,  Somerset,  Devon,  and  Cornwall.  A.  D.  108G  ? 
In  Domesda}',  IV. 

Font.  Rek.  Austr. —  Pontes  Rerum  Austriaearuni.  Oesterrei- 
chische  Geschichts-Quellen.     42  vols.     Wien,  18-35.     8°. 

Font.  Rer.  Bern.  —  Fontes  Rerum  Bernensium.  Berns  Geschichts- 
Quellen.     3  vols.     Bern,  1877-1880.     4*". 

Fleta.  —  Fleta  :  Commentarius  Juris  Anglicani  sub  Edw.  T.  A.  D. 
1272-1307.  John  Selden's  edition  is  as  good  as  any.  Lou- 
don, 1G47.     8''.     Again  m  1G85. 

Formulae.  —  E.  de  Roziere  :  Recueil  General  des  Formules  usitees 
dans  I'Empire  des  Francs  du  V*^  au  X*^  Siecle.  3  vols.  Paris, 
1859-1871.  8°.  Cf.  M.  G.  H.  Leg.  V. :  Formulae  Merowin- 
gici  et  Karolini.  Ed.  K.  Zeumer.  1882.  But  our  references 
are  to  the  Roziere  Collection. 

Fredegar.  —  Fredegarius  Scholasticus  :  Greg.  Turon.  Hist.  Epito- 
mata.  7th  Cent.  Edited  together  with  the  Works  of  Greg. 
Turon.  by  Ruinart.     Paris,  1699.     Folio. 

FuLDA  Cod.  —  Codex  Diplomaticus  Fuldensis.  E.  F.  J.  Dronke, 
editor.     Cassel,  1850.     4°. 

FuLDA  Trad.  —  Traditiones  Fuldenses.  Di'onkc,  editor.  Fulda, 
1844.     4^ 

Glanvill.  —  Ranulfus  de  Glanvill :  Tractatus  dc  Legibus  et  Con- 
suetudinibus  Regni  Angliae  Tempore  Regis  Henrici  Secundi. 
Edition  of  John  Rayner.  London,  1780.  12°.  There  is  a 
Translation  by  J.  Beames.     London,  1812.     8°. 

Greg.  Turon.  —  Grcgorii  Episcopi  Turonensis  Opera  Omnia. 
6th  Cent.  The  edition  of  Ruinart  is  a  very  gooil  one.  Paris, 
1699.  Folio.  See  also  the  edition  of  the  Societe  do  I'llistoire 
de  France,  with  French  translation.  4  vols.  Paris,  183G- 
1838.     8°. 


116  EARLY  HISTORY   OF  LAND-HOLDIXG. 

Grimm  Rechtsalt. — Recbtsaltertliiiraer.  Jacob  Grimm,  editor. 
Gottingen,  1828.     8°.     A  second  edition  in  1854. 

GniMM  Weisth.  —  Weisthumcr.  Jacob  Grimm,  editor.  6  vols. 
Gottingen,  1840.     8°. 

Grimoald.  —  Grimoaldi  Leges :  Lombard  Law  of  the  8th  Cent.  In 
Corp.  Jur.  Germ,  and  M.  G.  IL  Leg.  IV. 

GuDENus  Cod.  Dipl.  — Codex  Diplomaticus  Anecdotorum.  V.  F. 
de  Gudenus,  editor.  5  vols.  Gottingen  and  Frankfurt,  1743- 
17G8.     4°. 

GuNTHER   Cod.  Dipl.  —  Codex   Diplomaticus   Rheno-MoscUanus. 

W.  Giinther,  editor.     5  vols.     Coblenz,  1822-1826.     8°. 
Hardt  Weistii.  —  Luxemburger  Weistliiimer  als  naclilese  zu  Jacob 

Grimm's  Weisthiimern.      Von   Hardt,  Regierungsarchivar   in 

Luxemburg.     Luxemburg,  1870.     8°. 

Henneb.  Urkb.  —  Hennebergisches  Urkundenbuch.  Karl  Schop- 
pach,  first  editor.     7  vols.     Meiniugen,  1842-1877.     4°. 

Herren-Alb.  Urk.  —  Urkunden  Archiv  des  Klosters  Herren-Alb. 
12th  and  13th  Cent.     Mono  Zeits.  L 

Hist.  Frising.  —  Meichelbeck :  Ilistoria  Frisingensis.  2  vols. 
Augsburg,  1724.     Folio. 

Hist.  Fuld.  —  Schannat :  Ilistoria  Fuldcnsis.  "With  Codex  Proba- 
tionum.     2  vols.     Frankfurt,  1729.     Folio. 

Hist.  Trev.  —  Hontheim :  Ilistoria  Trevirensis  Diplomatica  et 
Pragmatica.     3  vols.     Augsburg,  1750.     Folio. 

Hist.  Wormat.  —  Schannat :  Ilistoria  Episcopatus  Wormaticnsis. 
2  vols.     Frankfurt,  1734. 

Indic.  Arnon.  —  Indiculus  Arnonis  (Bp.  of  Salzburg).  8th  Cent. 
F.  Keinz,  editor.  MUnchcn,  1869.  8°.  Also  in  the  Ju- 
vavia. 

Ine.  —  The  Laws  of  King  Ine.  7th  Cent.  ?  In  Thorpe  and  in 
Schmid. 

Inquis.  Eli.  —  Inquisitio  Eliensis.  A.  D.  1086?  In  Domesdaj-, 
IV. 

loRDANis.  —  lordanis  de  Gctarum  sive  Gothorum  Originc  et  Rebus 
Gestis.     The  edition  of  Closs  is  good.     Stuttgart,  1861.     8°. 

JuvAViA.  —  Nachrichten  vom  Zustande  der  Gegenden  und  Stadt 
Juvavia,  heutige  Salzburg.     Salzburg,  1784.     Folio. 


NOTES  AXD   REFERENCES.  117 

Kelso  Iveg. — Liber  S.  Marie  do  Calchou  :  Rcfristrum  Cartnrum 
Abbacie  Tironensis  de  Kelso.  A.  1).  1113-1.3G7.  Published 
by  the  Bannatyne  Club.     2  vols.     1846. 

Kemble's  Codex.  —  Codex  Diplomaticus  Aevi  Saxonici.  J.  INI. 
Kemble,  editor.     G  vols.     London,  183'J-1848.     8°. 

Kent  Custum. — The  Custumal  of  Kent.  Charles  Sand3"s,  editor. 
London,  185L     8^. 

KiXDLixcrER  IIouiGK.  —  KindUngcr's  Geschichte  der  deutschcn 
Ilcirigkeit  insbcsondere  der  sogeuannteu  Leibeigeuschaft.  Mit 
Urkunden.     Berlin,  1819.     8°. 

Lacomblet  Arciiiv.  —  Archiv  fiir  die  Geschichte  dcs  Niederrheins. 
T.  J.  Lacorablet,  editor.     7  vols.     DUsseldorf,  1832-1870.     8°. 

Lacomblet  Urkb. — Urkundenbuch  fiir  die  Geschichte  des  Nie- 
derrheins.     T.  J.  Lacomblet,  editor.      4  vols.      Uiisseldorf, 

1840-1858.     4°. 

Laukesham  Cod.  —  Codex  Laureshamensis  Diplomaticus.  3  vols. 
Mannheim,  1768-1770.     8°. 

Leibxitz  Scrip.  —  Scriptores  Rerum  Brunsvicensium.  Leibnitz, 
editor.     3  vols.     Hannover,  1707-1711.     Folio. 

Lex  Alam.  —  Lex  Alamannorum.  7tli  Cent,  In  Corp.  Jur.  Germ, 
and  M.  G.  H.  Leg.  III.     Also  in  the  Font.  Rer.  Bern.  I. 

Lex.  Axgl.  Wkrix.  —  Lex  Angliorum  et  "Werinorum,  hoc  est 
Thuringorum.  7th  Cent.  In  Corp.  Jur.  Germ.  Separate 
editions,  by  Gaupp  (1834),  and  Merkel  (1851). 

Lex  Baiw.  —  Lex  Baiwariorum.  7th  Cent.  In  Corp.  Jur.  Germ, 
and  M.  G.  IL  Leg.  III. 

Lex  Buro.  —  Lex  Burgundionum.  6th  Cent.  In  Corp.  Jur.  Germ., 
M.  G.  II.  Leg.  III.,  and  in  the  Font.  Rer.  Bern.  I. 

Lex  Fris.  —  Lex  Frisonum.  7th  Cent.  In  Corp.  Jur.  Germ,  and 
M.  G.  IL.Leg.  III. 

Lex  Rip.  —  Lex  Ripuaria.     6th  Cent.     In  Corp.  Jur.  Germ. 

Lex  Sal.  —  Lex  Salica.  A.  D.  500?  In  Corp.  Jur.  Germ.  In 
separate  editions  of  Pardessus  (Paris,  1843),  Merkel  (Berlin, 
1850),  Bchrend  (Berlin,  1874),  Ilessels  and  Kern  (London, 
1880),  and  Holder  (Leipzig,  1879). 

Lex.  Sax.  —  Lex  Saxonum.  8th  Cent.  In  Corp.  Jur.  Germ.  In 
separate  editions  of  Gaupp  (1837)  and  Merkel  (1853). 


118  EARLY  HISTORY  OF  LAND-HOLDING. 

Lex  AVisig.  —  Lex  "Wisigotborum.  otli  to  7lh  Cent.  lu  Corp.  Jur. 
Germ. 

Lib.  DE  IIyi).  —  Liber  Monastcrii  dc  Ilyda. —  Loudon,  18GG,  8°. 
liecord  Commissiou. 

Liber  Eli.  —  Liber  Eliensis  ad  Fidem  Codicum  Variorum,  edited 
b}-  D.  J.  Stewart.  Onl}'  oue  vol.  publislied.  Loudon,  1848.  8°. 
Compare  Gale,  Scriptores  XV.  p.  403.     London,  1G91.     4°. 

Liscii.  Urk.  —  Meckleuburgische  Urkunden.  G.  C.  F.  Liseli,  edi- 
tor.    3  vols.     Schwerin,  1837-1841.     8°. 

Littleton.  —  Sir  Thomas  Littleton  :  Treatise  of  Tenures  in  French 
and  English.  To  which  are  added  the  Ancient  Treatise  of  the 
Old  Tenures  and  Customs  of  Kent.  By  T.  E.  Tomlins.  Lon- 
don, 1841.     8.° 

LiuxruAND.  —  Liutprandi  Leges.  Lombard  Law  of  the  8th  Cent, 
lu  Corp.  Jur.  Germ,  and  M.  G.  II.  Leg.  IV. 

Mauri.  Chart.  —  Charta  Bonorum  Maurimonasterii.  A.  D.  1120? 
In  Alsat.  Dipl.  I.  p.  197.     Cf.  Pohp.  Irmiuon.  Introd.  p.  930. 

M.  B.  —  Mouumeuta  Boica.  A  Collection  of  Records  for  the  His- 
tory of  Bavarian  Lands.  51  vols.  Munchcn,  1703-1877. 
8'' "'and  4°. 

Meklknb.  Urkb.  —  Mccklcnburgisches  Urkundeubuch.  11  vols. 
Schwerin,  1803-1878.     4°. 

Melsa  Chron.  —  Chronica  Monastcrii  de  Mclsa.  A.  D.  1396. 
3  vols.     London,  1800.     8'^.     Kecord  Commission. 

M.  G.   II.  —  Monumeuta   Germaniae   Historica.      Edidit  G.    H. 

Pertz.   Scriptores  (Scrip.).    Leges  (Leg.).    Diplomata  (Dipl.). 

The  publication  was  begun  in  1820. 
M.  II.  B.  —  Monumeuta   Historica  Britannica ;    or  Materials   for 

the  History  of  Britain.     Only  one  vol.  published.     Loudon, 

1848.     Folio. 
MoHR  Cod.  —  Codex  Diplomaticus.    Urkunden  zur  Geschichte  Cur- 

Raticns    und  Granbunden.     Th.  von   Mohr,  editor.     3  vols. 

Chur,  1848-1852.     8°. 
MoNE    Zeits.— Zeitschrift    fur    die   Geschichte   des   Oberrheins. 

L.  J.  Mone,  first  editor.     30  vols.     1850-1878.     8°. 
MoN.  Nideralt,  —  Monumeuta  Nideraltaccnsia.     In  M.  B.  XI. 
MoN.  SciiEFTL.  —  Monumenta  Scheftlariensia.     In  M.  B.  VIII. 
MoN.  ScHLEHDORF.  —  Monumcuta  Schlehdorfeusia.     In  M.  B.  IX. 


NOTES   AXD   REFERENCES.  119 

MoN.  Tegerxs.  —  Monumcntca  Tegernseensia. — In  M.  B.  VI. 
Mox.     Weihekstepii.  —  Monumcnta     Weihenstephanensia.       In 
M.  B.  IX. 

MosER.  —  Familien-Staatsrecht  der  deutschen  Reichsstaiide.      By 

J.  J.  Moscr.     2  vols.     Frankfurt,  1775.     4°.     See  also   his 

Pcrsonliches  Staatsrecht,  and  Deutsches  Staatsrecht,  for  earl}- 

Hausgcsetze. 
MuNST.    Beitr.  —  Kindliuger's    Miinsterische    Beitriige    zur    Ge- 

schichte    Deutschlands,    hauptsiichlich    Westfalens.       3  vols. 

Munster,  1787-1793.     8°. 
Neugart  Cod.  — Codex  Diplomaticus  Aleraanniae  ct  Burgundiac- 

Transjuranae.     P.  T.  Neugart,  editor.     Typis  San-Blasianis, 

1791. 
NiEDERSACiis.  Urkb.  —  Urkundcnbucli   dos   Historiscben  Vereins 

fiir  Niedersaehsen.     11  vols.     Hannover,  18-1G-187.5.     8°. 

Oaths.  —  Oaths  of  the  Early  English  Law.      In  Thorpe  and  in 

Schmid. 
Oesterreicii.  Weistii.  —  Oesterreichisehe  'WeisthiiinGr.   I,  Die  Salz- 

burgischen  Taidinge.      II.,  III.,  IV.  Die  Tirolischen  Weisthii- 

mer.     4  vols.     Wien,  1870-1880.     8°. 

Orig.  Nassoic.  —  Origines  Nassoicae.  With  Codex  Diplomaticus. 
J.  M.  Kremer,  editor.     Wiesbaden,  1779.     4°. 

OsNAiiUK.  Gescii.  —  J.  Moser :  Osnabriickische  Geschichte.  3  vols. 
Berlin  and  Stettin,  1780-1824.     8°. 

Pardessus. — .1.    M.    Pardessus  :    Diplomata,   Chartac,  Epistolae, 

Leges,    etc.,   ad    Res   Gallo-Francicas    Spectantia.       2    vols. 

Paris,  1843-1849.     Folio. 
Perari).  —  llccuoil  do  plusienrs  Pieces  curieuses  servant  a  I'llis- 

toire   de   Bourgogne.      Par   Esticnne  Pcrard.       Paris,    10(14. 

Folio. 
Pez    Thesaurus.  —  Pez :    Thesaurus    Anecdotorum    Novissimus. 

G  vols.     Augsburg,  1721.     Folio. 

PoLYPT.  Irminon. — Polyptique  de  I'Abbd  Irminon.  Driiombre- 
ment  des  Manses,  &c.  de  I'Abbaye  de  Saint-Gcrmain-des- 
Pres,  sous  le  Regno  de  Charlemagne.  Guerard,  editor.  2  vols. 
Paris,  1844.     4°. 

PoLYPT.  DE  S.  Remi.  —  Poh'ptique  de  I'Abba^-o  de  Saint- Remi  de 
Reims.     Guerard,  editor.     Paris,  1853.     4°. 


120  EARLY   HISTORY   OF  LAND-HOLDING. 

Procopius.  — Procopkis  ex  rccensionc  Guilielmi  Dindorfii.  Greek 
and  Latin.  3  vols.  Bonn,  1«33-1838.  8°.  This  is  a  good 
edition. 

Eachis.  —  Kacliis  Leges.  Lombard  Law  of  the  8th  Cent.  In 
Corp.  Jur.  Germ,  and  M.  G.  IL  Leg.  IV. 

Ranks. — Ranks  in  Earl}'  English  Society.  In  Thorpe  and  in 
Schmid. 

Rect.  Sing.  Person.  —  Rectitudines  Singularum  Personarum. 
Angl-Sax.  and  Lat.  In  Thorpe  and  in  Schmid.  In  a  sepa- 
rate edition  by  II.  Leo.     Halle,  1842.     8°. 

Recueil. — Ilecueil  des  Ilistoricns  dcs  Gaulos  et  de  la  France. 
Rerum  (lallicarum  et  Francicarnm  Scriptores.  19  vols.  Paris, 
1869-1880.     Folio. 

Reg.  Wigorn.  —  Registrum  Prioratus  Beate  Mariae  "Wigorniensis. 
A.  D.  1240.     By  the  Camden  Society.     London,  18G5.     8°. 

Reg.  Hist.  "Westf.  — Regesta  Ilistoriae  Westfaliae.  Accedit  Co- 
dex Diplomaticus.  II.  A.  Erhard  and  Roger  Wilraans,  editors, 
4  vols.     Miinster,  1847-1880.     4°. 

Reg.    Prum. — Registrum   Prumiense.      A.   D.    893.      With    the 

Glossae   Caesarii   Ileisterbacensis.       A.  D.  1222.      In  Beyer 

Urkb.  and  in  the  Hist.  Trev.  CCCCLIX. 
RiED  Cod.  Dipl. —  Codex  Chronologico  Diplomaticus  Episcopatus 

Ratisbonensis.       Studio  Thomae  Ried.       2  vols.      Ratisbou, 

181G.     8°. 
RiTZ   Urk.  —  Urkundcn   und  Abhandlungen  zur   Geschichte   des 

Niederrheins  und  der  Niedermaas.    By  Wilhelm  Ritz.    Aachen, 

1824.     8°. 
RoTiiAR.  —  Edictum  Rotharis.     Lombard  Law  of  the  7th  Cent.    In 

Corp.  Jur.  Germ,  and  M.  G.  II.  Leg.  TV. 
RoTUL.    HuNDKED.  —  Rotuli   Ilundredorum.     Temp.    Hen.   III.  et 

Edw.  I.     1812.     2  vols.     Folio. 
Sachs.  Geschiciitsq.  —  Geschichtsquellen  der  Prov.  Sachscn  und 

angi'cnzender  Gebiete.     Halle.     8°. 

Sachsenspiegel.  —  Der  Sachscnspiegel.  Edited  by  Dr.  C.  G.  IIo- 
meyer.  Erstcr  Theil  (3d  ed.)  :  Berlin,  ISGl.  Zweiter  Theil : 
Berlin,  1842,  1844.     3  vols.     8". 

Salem  Reg.  —  Der  Aelteste  Giiterbesitz  dcs  chemaligen  Reichs- 
stiftes  Salem.      In  Mone  Zeits.   I. 


NOTES  AND  REFERENCES.  121 

Salomo  Foum.  —  Formelljueli  ties  Bishops  Salomo  III.  von  Con- 
stanz.    9th  Cent.    Ernst  Diimmler,  editor.    Leipzig,  1857.    S'^. 

ScHMiD.  —  Die  Gesetze  cler  Angelsachsen,  mit  Uebersetzung, 
Glossar,    etc.       Dr.    Reiuhokl     Schmid,     editor.      Leipzig, 

1858.     8°. 

ScHTLZE.  —  Ilausgesetze  der  regievenden  dentsehcn  Fiirstenhiiuser. 
Hermann  Sehulze,  editor.     Jena,  18G2.     8^. 

Spelman  Gloss.  —  Glossarium  Archaeologicura.  Authore  Henrico 
Spehnano.     3d  edition.     London,  1687.     Folio. 

Stenzel  Urkb.  — Tzschoppe  und  Stenzel :  Urkundensammlung  zur 
Geshiclite  des  Ursprungs  der  .Stiidte  in  Schlesien  und  Ober- 
Lansitz.     Hamburg,  1832.     4*^. 

Tacitus.  —  Tacitus :  De  Origine,  Situ,  Moribus,  ac  Populis  Ger- 
maniae  (Germ.);  Annales  (An.).     A.  D.  100. 

Theodoric. — Edictum  Theodorici :  Ostrogothic  Law  of  tlie  6th 
Cent.  In  Corp.  Jur.  Germ.  Also  in  Nivellius's  edition  of 
Cassiodorus. 

Thorpe. — Ancient  Laws  and  Institutes  of  England.  Benjamin 
Thorpe,  editor.     London,  1840.     Folio,  or  2  vols.  8°. 

Trad.  AViz.  —  Traditiones  Possessionesque  Wizenburgenses.  C. 
Zeuss,  editor.     Spier,  1842.     4°. 

Urkb.  Land.  o.  d.  Enns.  —  Urkundenbuch  des  Landes  ob.  der 
Enns.     7  vols.     Wien,  1852-1876.     8°. 

Vaissette.  — Vaissette  et  de  Vic :  Ilistoire  General  de  Languedoc. 
5  vols.  1730-1745.  Folio.  Another  edition.  10  vols.  1840. 
8°.     New  edition.     14  vols.     Toulouse,  1872-1876.     4°. 

Victor  ViTENSis.  — IlistoriaPersecutionis  Vandalicae  in  Duas  Partes. 
Prior  Complectitur  Libros  Quinque  Victoria  Vitensis  Episcopi. 
Ruinart,  editor.  Venice,  1732.  4°.  New  edition  in  Vol.  VII. 
of  the  Corp.  Script.  Eccles.  Lat.     Wien,  1881. 

Wenck.  —  Wcnck's  Ilessische  Landes-Geschichte,  mit  Urkunden. 
3  vols.     Frankfurt,  1785-1803. 

Wergilds.  —  Earlj'  English  Wergilds.     In  Thorpe  and  in  Schmid. 

Westf.  Urkb. — Urkundenbuch  zur  Landes  und  Rcchtsgeschichte 
des  Ilerzogthums  Westfalen.  J.  S.  Seibertz,  editor.  3  vols. 
Arnsberg,  1839-1854.     8°. 


122  EARLY  HISTORY  OF  LAND-HOLDING. 

Whitby  Cart.  —  Cartularium  Abbatiae  de  Whiteb}-.  Fund.  An. 
JMLXXVIII.  Christopher  Atkinson,  editor.  PubUshed  by 
the  Surtees  Society.     London,  1881.     8°. 

WiNSLOw  Manor.  —  Extracta  Rotulorum  de  IlaHmotis  tcntis  apud 
Manirum  de  AYynselovve,  Tempore  Edwardi  Tertii  a  Con- 
questu.     MS.  in  the  University  Librar}-,  Cambridge,  England. 

"WiNTON  Domesday.  —  Winton  Domesday.  A.  D.  1107-1128.  In 
Domesday  IV. 

WiRTEMB.  Urkb.  —  Wirtembergischcs  Urkundenbuch.  3  vols. 
Stuttgart,  1849-1871.     4°. 

Wm.  Conq.  —  Laws  of  William  the  Conqueror.  11th  Cent.  In 
Thorpe  and  in  Schmid. 

Zahn  Urkb.  —  Urkundenbuch  des  Herzogthums  Steiermark. 
J.  Zahn,  editor.     2  vols.     Gratz,   1875.     8°. 


The  following  notes  are  arranged  according  to  the  numbers 
given  in  the  text.  In  referring  to  sources  of  information,  we 
shall  use  the  abbreviated  titles  in  the  preceding  list. 

Note  1.  —  Page  1, 

Caesar  VI.  22  :  Agriculturae  non  student ;  majorque  pars  victus 
eorum  in  lacte,  caseo,  carne,  consistit.  Cf.  IV.  1  :  neque  multum 
frumento  sed  maximam  partem  lacte  atque  pecore  vivunt,  mul- 
tumque  sunt  in  venationibus.  In  the  first  passage  Caesar  speaks  of 
the  Germans  in  general ;  in  the  second  passage  he  is  speaking 
of  the  Suevi.  Then  read  Germ.  5  :  ne  armentis  quidcm  suus  honor 
aut  gloria  frontis  ;  numero  gaudent,  eaeque  solae  et  gratissimae  opes 
sunt.  This  is  said  of  the  Germans  in  general.  Cf.  Cap.  27.  Then 
read  Cap.  15,  21,  12.  The  chiefs  received  presents  of  live-stock. 
It  was  used  for  the  pacification  of  feuds,  and  for  the  payment  of 
fines.  It  served  various  purposes  instead  of  money.  See  Lex  Rip. 
XXXVI.  11,  and  Lex  Sax.  XIX  ;  also  Kemble's  Codex,  CXLVII : 
ager  hoc  praitio  emptus  est ;  c  oucs,  xxx  boues  et  vaccas,  xxx 
equos  indomitos  dedit. 


NOTES   AND   REFERENCES.  123 

We  find  descriptious  of  stock  owned  by  iudividutds  in  tlic 
documents.  Vid.  Cod.  S.  Galli  13,  352,  701  ;  Lauresham  Cod. 
MMMDCCXXXllI ;  Fulda  Cod.  110,  202,  240,  oOG,  301),  3jy, 
384,  473,  508,  520,  539,  540,  612;  Hist.  Frising.  I.  p.  120, 
and  Num.  CCXCV  ;  also  Xum.  DCLXXVII ;  Trad.  Wiz.  LIV ; 
Wirtemb.  Urkb.  I.  Xum.  XCIV ;  Cod.  Patav.  XIV.  Vid.  also 
the  FormuhB  CCXXVI,  CCXXXV,  CCXXXVIII,  CCXXXJX, 
CCXLIII,  and  CCCLXVII. 

The  passages  of  the  Folk-Laws  regarding  live-stock  should  be 
read.  See,  for  example.  Lex.  Sal.  II,  de  furtis  porcorum ;  111, 
de  furtis  animalium ;  IV,  de  furtis  ovium ;  V,  de  furtis  caprarum. 
Lex  Rip.  XVIII,  de  sonesti.  Also  XLVII.  Lex  Alam.  LXXII : 
de  eo  qui  in  troppo  de  jumentis  ductricem  involaverit.  Also 
LXXIII,  LXXIV,  LXXV  :  de  eo  qui  taurum,  gregen  regentem, 
involaverit  aut  Occident.  LXXVIII :  de  preccio  bovis.  LXXIX  : 
de  eo  qui  pastores  [porcorum  vel  ovium]  occiderit.  XCVII :  silva 
tam  porcorum  quam  pecorum.  XCVIII :  de  eo  qui  gregeii  anima- 
lium in  pignus  tulerit.  XCIX :  de  eo  qui  bisontem  vel  cetera  ani- 
malia  aut  furaverit  aut  occiderit.  CIII :  de  jumento  quod  hominem 
occidit.  Lex  Baiw.  III.  10  :  de  porcis  dispersis  [de  sono  ubi  sep- 
tuaginta  fuerint  porci].  VIII.  3:  si  majorem  pecuniam  furaverit 
.  .  .  aut  equum  totidem  pretii,  vel  mancipium,  et  negare  voluerit, 
cum  duodecim  sacramentalibus  juret  de  lite  sua,  vel  duo  campiones 
propter  hoc  pugnent.  Ibid.  8 :  aurum,  argentum,  jumenta,  vel 
pecora.  Ibid.  11  ;  XII.  4,  5;  XIII.  Lex  Burg.  XLIX :  de  ani- 
malibus  damnum  facientibus  in  clausura  missis.  Add.  I.  2,  18, 
20.  Lex  Fris.  IV  :  de  servo  aut  jumento  alieno  occiso  .  .  .  equi  et 
boves,  oves,  cuprae,  porci,  et  quicquid  mobile  in  animalibus  ad  usum 
hominum  pertinet,  usque  ad  canem.  Many  more  references  might 
be  given. 

From  the  time  of  the  Folk-Laws  on,  however,  the  life  of  the 
people  was  agricultural  rather  than  pastoral ;  that  is  to  say,  they 
depended  rather  upon  the  produce  of  the  fields  than  upon  the  in- 
crease of  stock  for  their  means  of  subsistence.  A  great  di^al  of  the 
land  was  then  brought  under  cultivation.  But  this  was  not  the  case 
during  the  migrations. 


124  EARLY  HISTORY  OF  LAND-HOLDINa. 


Note  2.  —  Page  1. 

Tacitus  Germ.  16  :  Nullas  Germanorum  populis  urbes  habitari 
satis  notuin  est,  ne  pati  quidem  inter  se  iunctas  secies :  eoluut  dis- 
creti  ac  divcrsi,  ut  foiis,  ut  campus,  ut  nemus  placuit,  vicos  locant 
uoii  in  nostrum  morem  conexis  et  coliaerentibus  aedificiis  ;  suam 
quisque  domum  spatio  cii'cumdat,  sive  adversus  casus  ignis  reme- 
dium  sive  inscitia  aedifieandi. 

There  seems  to  be  a  contradiction  here.  The  people  settled  apart 
from  one  another,  and  3-et  they  had  villages. 

Compare,  however.  Germ.  25  :  Ceteris  servis  uon  in  nostrum 
morem  dcscriptis  per  familiam  miuisteriis  utuntur :  suam  quisque 
sedem,  suos  penates  regit,  frumenti  modum  domiuus  aut  pecoris 
aut  vestis  ut  colono  iuiungit,  et  servus  hactenus  paret. 

Tlie  vici  locati  of  Germ.  IG  must  have  been  manorial  villages,  or 
villages  of  dependants  and  slaves  ;  such,  for  example,  as  Clirodinus 
founded  and  gave  to  the  Church.  Vid.  Greg.  Turon.  VI.  20  :  nam 
saepe  a  novo  fundans  villas,  aedificans  domos,  culturas  erigens  .  .  . 
ipsas  domos,  cum  cultoribus  et  culturis,  benignc  distribuebat. 

Cf.  Chart.  Sithiense  Folq.  Lib.  I.  xxix :  onines  villas  meas  cum 
adjaccntiis.  Lib.  II.  lxv  :  Hildincurtem  cum  villulis  ad  eandem 
pertiueutibus.  Lacomblct  Urkb.  105:  curtem  dominieatam  cum 
quadquaginta  sex  mansis.  1G9  :  curtim  cum  omni  integritate  man- 
sorum.  Fulda  Trad.  Cap.  4.  85  :  xxx  villas  et  mancipia  sine 
numero.  Cap.  41.  4:  Odiltag  et  uxor  tradid.  bona  sua  in  page 
Liergewe,  XX  vilMis.  Trad.  AViz.  XVII :  villas  juris  nostri.  Orig. 
Nassoic.  VII:  villam  juris  nostri,  habcntem  plus  minus  mansos 
decem  et  septem.  Indie  Arnon  I.  7  :  villulam  cum  mansos  x. 
Kemble's  Codex  CXL :  dabo  terram  septies  quinos  tributariorura 
Jugcra  continentem.  Est  autera  rus  prefatum  in  nii  villulis  separa- 
tum .  .  .  quartus  viculus,  hoc  est  Nordtun,  x  manentium.  Ibid. 
CLI :  omnes  villulas  et  possessiones.  CCCXXXVI :  fundum  cum 
suo  hundredo,  habens  centum  cassatos.  CCCXLVIII :  terram  v 
cassatorum,  id  est  vicus  qui  nominatur  Eatun.  Here  we  have  the 
vicns  locahis  of  Tacitus,  with  (Germ.  2G)  agri  pro  quinqiie  cultoribus. 
We  shall  see,  as  we  go  on  in  our  argument,  how  in  the  earl}' 
time  property  consisted  regularly  of  isolated  farmsteads  with  vil- 
lao-es  of  serfs  attached  to  them.     It  could  very  well  be  said  of  the 


NOTES  AND  REFERENCES.  125 

freemen  that  they  lived  ai)avt  fi'om  one  another  and  founded  villages. 
The  villages  A\hich  tliey  founded  were  villages  of  dependants  and 
slaves,  or  serfs. 

Note  o.  —  Page  1. 

Cicero,  De  Republica  II.  9  :  quod  turn  erat  res  in  pecore  et  loco- 
rum  possessionibus,  ex  quo  pecuniosi  et  loeuplctes  voeabautur. 

Note  4.  —  Page  2. 

Rothar  CXXXVI :  De  illis  vero  pastoribus  dicimus  qui  ad  libe- 
ros  homines  servierunt  et  de  sala  propria  exeunt.  Lex  Alam. 
LXXIX  :  pastores  porcorum  vel  ovium.  XCVIII :  gregem  auima- 
liura.  Lex  Sal.  Septem  Causas,  11  (Merkel,  p.  95)  :  peeora  qui 
pastore  non  habent.  Beyer.  Urkb.  I.  32,  34 :  greges  cum  pastori- 
bus. Trad.  Wiz.  LIV :  vaccas  et  illo  pastore,  porcos  cum  pas- 
tore,  berbices  cum  pastore.  Formulae  CCXXXVIII,  CCXXXIX, 
CCXLIII :  gregem  agnorum,  gregem  armentorum,  gregem  porco- 
rum, gregem  ovium.  Wirtemb.  Urkb.  XVIII:  gregis  cinn  pastori- 
bus. So  in  XIX  and  XXIII.  Hist.  Trev.  XLVII :  pastoribus, 
gregis  pecudum.  Rothar  CXXIX  Form. :  porcarius,  pecorarius, 
caprarius,  armentarius.  Cf.  Dipl.  Spuria  5G :  pastoribus,  vac- 
cariis,  porcariis,  bervicariis,  cum  gregibus  vel  omni  peculio  promis- 
cuo.  Land  was  occupied,  in  the  first  place,  by  the  flocks  and 
herds.  One  tract  of  land  was  occupied  b}'  A's  animals  ;  another 
tract  was  occupied  by  B's  animals.  The  position  of  a  man's  home 
was  then  determined  In'  the  position  of  his  pasture  ground.  Each 
man  settled  himself  among  his  flocks  and  herds,  in  the  midst  of  the 
land  which  they  occupied. 

A  settlement  in  isolated  Hirmsteads  is  an  almost  inevitable  fea- 
ture of  the  pastoral  life.  "We  see  how  it  is  in  our  own  country.  In 
the  cattle-breeding  regions  of  the  West  we  have  isolated  farms  or 
ranches,  instead  of  villages  and  towns. 

Note  f).  —  Page  2. 

Caesar  IV.  1  :  Sueborum  gens  est  longe  maxima  et  bellicosis- 
sima  Germanorum  omnium.  Hi  centum  pagos  habere  dicuntur,  ex 
quibus  quotannis  singula  milia  armatorum  l)ellandi  causa  ex  finibus 


126  EARLY   HISTORY   OF  LAND-HOLDING. 

educunt ;  rcliqui  qui  doiiil  nianserint  so  atque  illos  aliint.  Hi  nir- 
sus  invicc'in  anno  post  in  armis  sunt  illi  douii  reuianent.  Sic  neque 
agrieiiltiira,  nee  ratio  atque  usus  belli  intermittitur. 

Tueitus  Germ.  26:  Agri  pro  nuuiero  eultoruni  ab  universis  in 
vices  [or  invicem]  occupantur.  Tlien  Germ.  27  :  llacc  in  com- 
mune de  omnium  Germanoruni  origine  ac  moribus  accepimus.  We 
read  in  tlie  Angl.  Sax.  Chron.,  at  tlie  3ear  894,  that  King  Alfred 
had  his  forces  so  divided  that  half  of  his  men  were  at  home  while 
the  other  half  were  in  the  field. 

Note  G.  —  Page  3. 

Tacitus  Germ.  4,  11,  13  :  Nihil  autem  neque  publicae  neque  prl- 
vatae  rei  nisi  armati  agunt.  14,  15  :  delegata  domus  et  penatium  et 
agrorum  cura  feminis  senilusque  et  infirmissimo  cuique  ex  faniilia. 
By  the  word  cura,  management,  administration,  or  superintend- 
ence is  meant.  The  actual  work  in  the  fields  was  done  by  slaves. 
Read  also  Germ.  17,  21,  22,  24.  Agriculture  was  seldom  resorted 
to,  unless  tliere  were  slaves  to  do  the  work.  Even  as  late  as  the 
year  789  agricultural  labor  was  regarded  as  servile  labor.  See  the 
description  of  the  opera  servilia  in  the  Capitulare  Aquisgranense, 
LXXTX  (Corp.  Jur.  Germ.  II.  p.  97)  ;  and  in  Lex  Baiw.  VI. 
Cap.  II. 

Note  7.  —  Page  3. 

Slaves  are  first  mentioned  by  Tacitus,  Germ.  20,  24,  25,  38,  44. 
References  to  them  are  common  in  the  earl}'  laws.  See,  for  ex- 
ample, Lex  Sal.  X,  XII,  XXV,  XXVI,  XXVII,  XXXV,  XXXIX, 
XL,  XLVII.  Lex  Rip.  VIII.  Slaves  are  referred  to  in  all  the 
fourteen  sections  XVII-XXX,  in  LVIII,  LXI,  LXII,  and 
LXXIV.  Lex  Alam.  Ill,  V,  VII,  VIII,  XX,  XXI,  XXII, 
XXXVII,  XXXVIII,  XXXIX,  LXXXV,  LXXXVI,  CV.  Lex 
Baiw.  I,  II,  III,  V,  VI,  VII,  VIIL  IX,  XI,  XII,  XV,  XVII. 
Lex  Burg.  II,  III,  IV,  V,  VI,  VII,  X,  XV,  XVI,  XVII,  XX, 
XXI,  XXVI,  XXVII,  XXXII,  XXXIII,  XXXV,  XXXVIII, 
XXXIX,  XL;  XLVII,  L,  LIV,  LVI,  LXIII,  LXX,  LXXIII, 
LXXVII ;  Add.  (I),  IV,  V,  VII,  VIII,  XII ;  Add.  (II),  I,  II,  III, 
IV,  VIII.  Lex  Fris.  I,  II,  III,  IV,  IX,  XII,  XVIII,  XX ;  Add. 
VIII,  IX.      Lex  Angl.  AVerin.  I,  VI,  IX,  X.     Lex  Sax.  II,  XI, 


NOTES  AXD   REFERENCES.  127 

XV.  So  in  the  other  Folk-Laws.  Slavery  and  dependence  upon 
slave  labor  were  universal. 

In  order,  however,  to  be  completely  convinced  of  this,  the  stu- 
dent should  turn  over  the  volumes  of  formula3  and  documents  to  see 
how,  in  almost  every  grant  of  land,  slaves  are  included  as  cultivators 
of  it.  The  regular  formula  is :  cum  domibus,  a?dificiis,  accolabus, 
mancipiis,  campis,  pratis,  pascuis,  aquis,  aquarumve  decursibus. 
Slaves  were  regarded,  like  cattle,  as  a  regular  and  proper  means  of 
subsistence. 

In  the  course  of  wars  and  conquests  the}'  were  accumulated  in 
vast  numbers  ;  so  that  the  members  of  victorious  nations,  clans, 
and  families  were,  as  a  rule,  well  provided  with  them.  AVith 
plenty  of  slaves  the  freemen  had  ho  occasion  to  work  in  the  fields. 
"We  shall  see,  as  we  go  on  in  our  argument,  how  property  consisted 
regularl}^  of  houses  occupied  b}'  slaves,  and  lands  cultivated  by 
slaves.  Vid.  Formula  CXVIII :  mansis  cum  mancipiis  corama- 
nentibus.  The  number  of  slaves  owned  b}^  the  free-lords  was  often 
ver^'  large.  Gerard  and  his  wife,  in  Ritz  Urk.  12,  owned  as  many 
as  three  hundred  and  sixty.  This  is  not  an  isolated  case.  One 
tract  of  land  was  cultivated  by  A's  slaves.  Another  tract  was 
cultivated  by  B's  slaves.  The  position  of  a  man's  home  was  de- 
termined b}^  the  position  of  his  colony  or  colonies  of  slaves.  The 
free-lords  lived  as  a  rule  among  their  slaves,  in  the  midst  of  the 
land  which  they  cultivated.  Cf.  Germ.  20  :  Dominum  ac  servura 
nullis  educationis  deliciis  dignoscas  ;  inter  eadem  pecora,  in  eadem 
humo  degunt,  donee  aetas  separat  ingenuos,  virtus  adgnoscat.  The 
settlement  in  isolated  farmsteads  was  almost  inevitable.  We  know 
how  it  has  been  in  our  own  countr}'.  A  system  of  isolated  farms 
obtained  in  Marj'land,  Virginia,  and  other  Southern  States,  up  to 
the  time  of  the  Civil  War,  because  agricultural  labor  was  performed 
by  colonies  of  slaves.  The  township  sj'stem  was  almost  unknown 
at  the  South.  Villages  of  small  proprietors  existed  mostl}'  in  the 
North,  where  the  land  was  cultivated  by  freemen.  Whenever  men 
have  great  herds  of  cattle,  or  herds  of  slaves,  they  settle,  as  a  rule, 
apart  from  one  another  upon  isolated  farms,  —  Einzelhofe. 


128  EARLY  HISTORY  OF  LAXD-HOLDING. 


Note  8.  —  Page  4. 

Frecdmcn,  as  distinguished  from  slaves,  are  mentioned  in  Taci- 
tus Germ.  25.  Their  condition  was  not  much  better  than  tliat  of 
slaves.  Cf.  Rothar  CCXXIX.  They  were  doubtless  emploj'ed  in 
agricultural  labor,  as  in  later  times.  In  the  later  records  the^'  are 
called  liti.  Cf.  Reg.  Hist.  Westf.  XXVIII :  de  litis  quani  de  in- 
genuis  hominibus  terram  ejus  incolentibus.  In  descriptions  of 
landed  property  free  tenants  are  frequentl3'  mentioned,  as  in  the 
case  just  cited.  If  the  land  was  alienated  the  free  tenants  were 
alienated  with  it,  unless  they  gave  up  their  tenures.  Vid.  Cod. 
8.  Galli  42  :  Ego  Duto  dono  quidquid  in  Chisincas  habeo,  hoc  est 
casa  curtile  et  terra  salica,  ct  servos  tuos  .  .  .  ingenui  tuo 
cumnianent  terram  illam,  et  si  vultuui  mauire  post  obitum  meum, 
qualum  servicium  mihi  fecerunt,  talem  faciant  vobis.  Cf.  Capi- 
tularia,  A.  D.  812,  I.  Cap.  1  :  liber  homo  qui  mansos  vestitos  de 
alicujus  beneficio  habet.  Alsat.  Dipl.  XCVIII :  ingenuos  com- 
manentes  in  villa  E.  The}'  are  alienated  to  Lucerne  monaster}'. 
Formula  LII :  qui  se  in  servitio  alterius  obnoxiat.  Vid.  Lex 
Baiw.  VI.  Cap.  Ill :  liberi,  qui  justis  legibus  deserviunt.  Hist. 
Frising.  I.  p.  52  :  mancipias,  servos,  liberos  tributales.  We  find 
these  various  classes  of  tenants  settled  upon  the  inheritance  of 
Suarzoth  at  Toolpach.  They  are  given  with  the  land  to  the  church 
at  Frising.  Vid.  Ibid.  Num.  XII :  quicquid  nobis  in  portionem 
evenerat  tam  liberis  quam  colonis  et  servibus.  ludic.  Arnonis 
VII.  8  :  similiter  tradidit  tributaries  Romanos.  Ibid.  10  :  mansos 
inter  servos  et  liberos.  Cod.  Trad.  Lunaelac.  XIII:  liberos  ad 
ipsum  locum  detentos.  Diplomata  Merow.  15  :  ingenuis  in  eorum 
agris  commancntibus.  Vid.  also  Ibid.  58,  62,  95.  Dipl.  Arnulf. 
23 :  pro  susceptione  pauperum  et  peregrinorum  ipsas  [res]  roddi- 
dimus.  Dij)!.  Spuria  1,  22.  Cf.  Raed  IV.  13:  terram  octoginta 
septem  familiarum,  ubi  suos  homines  qui  exules  vagabantur  recipere 
posset. 

The  freemen  who  were  in  the  position  of  dependants  were  often 
obliged  to  engage  in  agricultural  labor.  In  the  Reg.  Baden.  3, 
for  example,  we  have  mentioned  the  tributa  ac  servitia,  quae  liberi 
homines  persolvant.  Cf.  Hist.  Frising.  CDLXXXI :  isti  sunt 
liberi  homines  .  .   .  arant  dies  iii,  tribus  temporibus  in  anno,  et 


NOTES  AND  REFERENCES.  129 

secant  trcs  dies,  illud  eollegunt  et  duciint  iu  horrca  ct  rcddaiit 
modios  XV  .  .  .  llrodfiid  arat  pleniter  sicut  alii  servi.  The 
position  of  the  dependent  freeman  was  often  little  better  than  that 
of  a  slave.  Onl}'  he  could  leave  his  lord,  if  he  pleased.  Vid.  Lex 
"Wisig.  V.  Tit.  III.  1  :  habeat  licentiam  cui  se  voluerit  commen- 
dare.  Quoniani  ingenuo  liomini  non  potest  prohiberi,  quia  in  sua 
potestate  consistit.  Cf.  Aistulph  XIV,  Then  Rothar  CLXXX'II. 
Before  leaving  his  lord,  however,  as  we  see  in  this  passage  of 
Rothar's  edict,  the  freeman  had  to  pa}-  back  to  him,  or  to  his 
heirs,  all  that  he  had  received:  res  ad  donatorem,  vel  lieredem 
ejus  revertantur.  So  in  Lex  "Wisig.  V.  Tit.  III.  1  ;  cf.  also  Ibid. 
2,  3,  4.  According  to  a  Frankish  Capitulary  (A.  D.  813,  II.  Cap. 
16),  the  vassal  could  not  leave  his  lord  after  he  had  received  the 
equivalent  of  one  solidus  :  excepto  si  cum  vult  occidere,  aut  cum 
baculo  caedere,  vel  uxorem  aut  filiam  maculare,  sen  hereditatem  ei 
toUere.  According  to  Alsut.  Dipl.  LXXXII,  the  dependants  were 
distributed  into  tlu'ce  classes,  — familia  tota,  sive  militaris  sive  cen- 
sualis  vel  et  servilis.  The  members  of  the  first  class,  the  familia 
militarise  did  no  servile  work.  It  was  all  left  to  the  members  of 
the  other  classes.  The  familia  censnalis  consisted  mainly-  of  free 
tenants  The  familia  servilis  consisted  mainly  of  slaves.  In  the 
course  of  time,  the  condition  of  the  slaves  being  raised,  and  the 
condition  of  the  free  tenants  being  lowered,  the  two  classes  came 
to  be  nearly  or  completely  merged  into  one  class,  —  the  class 
of  serfs,  as  we  have  said.  The  class  of  free  tenants  will  be  con- 
sidered more  particularly  in  another  connection. 

Note  9,  —  PaCxE  5. 

Germ.  20  :  Agri  pro  numero  cultorum  ab  universis  in  vices  [or 
invicem]  occupantur,  quos  mox  inter  se  secundum  dignationeni 
partiuntur ;  facilitatem  partiendi  camporum  spatia  praebcnt,  arva 
per  annos  mutant,  et  supcrest  agcr,  nee  enira  cum  ubcrtate  et 
amplitudine  soli  labore  contendunt,  ut  pomaria  conserant  et  prata 
so[)arent  et  hortos  rigent :  sola  terrae  seges  imperatur. 

The  arjri  were  small  arable  farms.  One  was  assigned  to  each 
cultivator,  in  the  time  of  Tacitus,  as  in  later  times.  Ilist.  Frising. 
DCCXIX :  mancipia  et  xii  agros.  Mon,  Weihensteph,  p,  487: 
duos  agros  terre  arato.     Trad,  Wiz.  CXXVII :   agros  non  modi- 

9 


130  EARLY  HISTORY   OF  LAXD-nOLDIXG. 

cos  ad  arandum.  Reg.  Hist,  Wostf.  XXXIV:  agris,  farailiis. 
Osnabrk.  Gesch.  LI:  agros  x  in  Tlirele  ;  x  in  Bist,  impari  qui- 
dein  magiiitudine.  Cf.  also  LXXXII,  LXXXX.  Stenzel  Urkb. 
XXXVII:  omnibus  autem,  qui  in  agris  habitant  extirpatis  .  .  . 
liii  vero  qui  agros  occupant  extirpandos.  This  illustrates  what 
Tacitus  says  ver\'  well. 

The  cif/ri  o(  Germ.  2G  are  the  niansi  or  hnh(e  of  the  later  records. 
Cf.  Cod.  Dipl.  Lubec  II.  clx  (p.  155)  :  in  B.  non  sunt  agri  sive 
mansi  distinctemensurati,  undo  ignoramus  quot  sint  ibi  mansi  .  .  . 
fecimus  agros  mensurari,  et  inventi  sunt  [x?]  mansi.  Ibid,  cccvit  : 
agri  A'ille  cum  colonis  ibidem  commorantibus  .  .  .  agri  sicut  nunc 
mensurali.  Tliese  are  the  (tgri  pro  numero  cultoruni  occupati  of 
Tacitus,  without  doubt.  See  Cod.  Trad.  Reichersberg  III :  prediis 
[agri?]  eidem  curti  appendiciis  usque  ad  xxx,  ut  dicitur  mansos. 
Also  CXXII  (p.  341)  :  agris  ad  sedecim  mansos  et  medietatem 
unius  mansi.  Henneb.  Urkb.  LXIII :  sex  agros  in  campis  ville 
[^agros  in  arvis  in  Tacitus?].  Cf.  CXXIII :  sex  mansus  cum 
dimidio,  sitos  in  campis  Viselbreche.  Be3'er  Urkb.  135,  Glossa  1 
(p.  14-1)  :  mansis  indominicatis  qui  sunt  agri  curie. 

The  mansus  is  often  described  as  a  colonia  or  coluuica.  The  agri 
of  Germ.  26  are  the  coloniae  of  the  later  records.  See  Mone  Zeits. 
I.  p.  395  :  tres  coloniae  sen  agri.  Cf.  Lex  Burg.  XXXVIII.  7  :  in 
agro  vel  colonica.  In  the  English  records  we  have,  instead  of  the 
mansus,  the  hida.  The  words  have  the  same  signification.  Vid. 
Kemble's  Codex  CCCXCVIII :  bis  denas  mansas,  quod  Anglice 
dicitur  twcntig  hida.     So  also  in  DCXXI. 

King  Wulfher  gave  to  St.  Chad  fifty  hides  of  land  at  Barrow  (?). 
Baed  describes  these  hides  as  the  land  of  fifty  families  :  terram  quin- 
quaginta  familiarum.  This  would  be,  in  the  phrase  of  Tacitus  : 
agri  pro  quinquaginta  cultoribns  occupati.  Vid.  I  list.  Eccl.  IV.  3. 
The  English  estimated  their  lands  according  to  the  number  of  fami- 
lies (i.  e.  cultores)  that  could  be  set  out  upon  it.  Vid.  Bacd  I.  25  : 
Tanatos  insula  non  modica,  id  est,  magnitudinis  juxta  consuetudi- 
nem  aestimationis  Anglorum  familiarum  sexcentarum.  So  in  II. 
9  ;  III.  4  ;  and  other  passages.  The  land-owners  divided  the  land 
into  fixmily  allotments,  whicli  they  distributed  among  their  depend- 
ants and  slaves,  or  serfs.  This  was  the  case  among  the  Germans 
generally,  from  the  time  of  Tacitus  on. 

The  family  allotments  are  described  as  agri  by  Tacitus,  and  In- 


NOTES   AND   REFERENCES.  131 

some  of  the  later  writers,  as  we  have  seen.  The}'  are  called  hides 
by  the  English.  Vid.  the  Anglo-Saxon  version  of  Baed's  History, 
in  which  the  Latin  terra  famiUue  is  rendered  b}'  the  Anglo-Saxon 
hida.  Vid.  also  Angl.  Sax.  Chron.  A.  D.  565  and  G48.  Kemble's 
Codex  CCXXX,  CCXCVII,  CCCCXLII :  terrae  meae  portionem 
XX  videlicet  hidas  secundum  aestimationem.  Ine  24,  32,  54,  04,  G5, 
Q(j,  70.  Wergilds  7,  8,  9.  Ranks  2,  3.  Lib.  Eli.  (Gale's  edition) 
II.  Cap.  40.  Ibid.  (Stewart's  edition)  II.  Cap.  4,  7,  8  :  xii  hydas, 
scilicet  manerium  quod  Lindune  dicitur.  Cap.  11  (p.  129)  :  hydani 
per  sexies  xx  acras.  Ibid.  (p.  130)  :  hidas  integras.  Cap.  14,  17, 
23  :  collectis  terris  inventae  sunt  hidae  sexaginta.  Cap.  31,  32,  33. 
The  hides  appear  to  have  consisted  quite  regularly'  of  a  hundred  and 
twenty  acres  ;  not  always,  however ;  and  the  acre  may  have  varied 
in  different  places.  It  is  quite  useless  to  tr}'  to  arrive  at  equiva- 
lents in  modern  measures.  The  acre  was  in  many  cases  a  small 
field  simply,  i.  e.  an  ager ;  and  a  hundred  and  twenty  small  fields 
were  called  a  hide.  A  standard  acre  was  hardly  established  until 
the  thirteenth  centnr}'.  Vid.  Statutum  de  Admensuratione  Terre. 
Statutes  of  the  Realm,  I.  p.  20G.  The  extent  of  the  acre  was  at 
first  defined  as  the  amount  of  land  which  one  man  could  plough  in 
one  day.  Under  this  definition  there  was  I'oom  for  considerable 
variations,  and  it  was  a  long  time  before  standards  were  instituted. 
The  word  cussatns  is  often  used  instead  of  the  word  hida.  Vid. 
Kemble's  Codex  XIX,  XLVIII,  LXXXIX,  XC,  CV,  CXXXVIII, 
CXLIII,  CCXXXII,  CCCXXXV,  CCCXLVIII,  DCXXII :  v  cas- 
satos  .  .  .  fif  hida.  So  in  Abingdon  Chron.  I.  pp.  29,  30  :  xii  cas- 
satorum  .  .  .  xii  hida.  Cf.  p.  192.  There  are  many  other  similar 
records.  The  word  mansns  is  also  common.  Vid.  Abingdon  Chron. 
I.  p.  201  :  xx  mansos  .  .  .  xx  hida.  Cf.  pp.  205,  232-233,  240, 
304.  The  word  mansns  is  the  word  most  commonly  used  upon  the 
Continent  to  describe  the  family  allotment.  The  word  huba  occurs 
very  frequentl}-,  however.  We  shall  consider  the  mansi  and  hiibae 
more  particuhul}'  in  notes  to  come.  We  must  now  describe  the 
manner  in  wliich  the  lots  wore  measured  off.  According  to  certain 
traditions  the}'  were  measured  olfwith  a  cord  ukkIc  from  the  hidt; 
of  an  ox  or  some  other  animal.  Tlie  hide  was  cut  u\)  in  slender 
strips.  These  were  then  fastened  together,  and  the  cord  thus  made 
was  used  as  a  diameter  for  the  Icngih  and  l)rcadth  of  the  alhjtment. 
This  is,  perhaps,  the  reason  why  the  allotment  was  called  a  /tide. 


132  EARLY   HISTORY  OF  LAND-HOLDINa. 

See  Grimm  Rechtsaltertlmmer,  2d  ed.,  pp.  89-91.  We  know  from 
the  records  that  a  cord  of  some  sort  was  used  in  iiu'asuring  off  tlie 
allotments.  It  is  described  by  the  Latin  word  /'laiis,  ov  funiculus  ; 
aiul  by  the  Ciernuin  words  /lofslac/t,  rcptnate^  scliedcmate.  See  Cod. 
Dipl.  Lubec.  II.  cccxix  :  trium  mansorum  debitam  mensuram  per 
distributimis  funiculam,  quod  vulgo  dicitur  hofslacli.  Then  Lisch. 
Urlib.  II.  p.  102:  dimensionem  funiculi  [repmate  efte  schcdeniate]. 
Cf.  also  Ibid.  p.  143. 

I'rof.  Ilanssen  cites  the  following  passage  from  A.  Suneson's 
Schonisches  Gesetzbuch  (IV.  1)  :  cujus  (funiculi)  dimensione  tota 
villa  in  aequales  redigitur  portiones,  quas  materna  lingua  vulgaritur 
Boll  appellant  et  nos  in  latino  sermone  mansos  possumus  appellare, 
carum  fundis  inter  se  praediisque  inter  se  fundis  ipsis  adjacentibus 
adaequandis.     See  Ilanssen's  Abhandlungen,  p.  8. 

The  length  of  ih^faniculas  was  in  later  times  determined  by  the 
landlords.  It  was  not  necessarily  made  from  a  hide,  and  its  length 
could  be  varied  indefinitely.  It  dilfered  in  different  localities,  ac- 
cording to  different  standards  which  were  introduced.  Sometimes, 
when  a  landlord  had  more  tenants  than  land,  he  would  shorten  the 
funiculns,  and  make  a  redistribution  of  lots.  In  that  wa}',  he  could 
sometimes  increase  the  number  of  lots.  Cod.  Dipl.  Lubec  II.  cxcviii : 
quicquid  super  sedecim  mansos,  pro  quibus  nunctem[)oris  villa  ja- 
cet  per  funiculum  dimensionis  excreverit.  Then  read  Ibid,  clx  (p. 
154)  :  hujus  ville  mansi  et  termini  quando  capitulo  placuerit  pos- 
sunt  mensurari :  hereditas  enim  est  ecclesie.  One  or  two  extra  lots 
were  sometimes  eked  out.  As  no  reduction  of  dues  and  services 
was  made  in  consequence  of  this  reduction  of  the  lots,  complaints 
arose.  So  it  became  customar}"  for  the  landlords  to  promise  that 
the  lots  should  not  be  measured  again,  or  that,  if  measured  again, 
the  diameter-cord  should  not  be  altered.  Lisch  Bd.  I.  xcv.  :  ex- 
emptam  et  liberam  ab  omni  mensuracionis  et  funiculacionis  genere 
pro  quatuor  mansis  perpetuo  donavimus  et  posuimus.  Cf.  also 
Bd.  II.  VIII,  XXII,  XXIV,  XXV,  XXVI,  xxvii,  xliv,  xlix  ;  Bd. 
III.  xviii.  "When  the  Vandals  came  into  Africa,  in  the  fifth 
centuiy,  the  funiculus  was  used  in  dividing  the  land.  A'id.  Victor 
Vitensis  I.  4.  Dudo  tells  us  that  the  lands  of  Normandy  were 
divided  at  first  bj'  the  funiculus.  Vid.  passage  cited  by  Lappen- 
berg,  in  his  "  E^ngland  under  the  Norman  Kings"  (Thorpe's  trans- 
lation, p.  18,  note).      Cf  also  Ilelmold  Chron.  Slav.  I.  91  (M.  G. 


NOTES   AXD   REFERENCES.  133 

H.  Scrip.  XXI.  p.  83),  and  Mon.  Xideralt,  p.  33;  ut  maximiis 
campus  per  fuuiculos  mensuraretur,  et  cuilibet  bube  xii.  jugera 
deputarentur. 

The  fit )ii cuius  was  given  up  after  a  time  for  the  rod,  vi?-ga  or  per- 
tica.  Different  rods  were  used  in  different  places  (vid.  Du  Cange 
sub.  voc.  pertica) ,  \\v\t\\  standards  were  established  by  authority. 
Cf.  Cai)italaria,  A.  D.  803,  III.  Cap.  8  :  De  meusuris  ut  secundum 
jussionem  nostram  aequales  fiaut. 

After  a  while  we  meet  with  the  virga  teutonicalis.  Wd.  Stenzel 
Urkb.  XXIX :  mensuram  Teutonicalem,  videlicet  duccntas  et  sep- 
tuaginta  virgas  Teutonicales.  AVas  this  mensura  Teutonicalis  the 
regular  diameter  for  the  mansi  or  huhae  ?  "When  rods  were  used  in 
measuring  out  the  arable  lots  (the  agrl),  a  certain  number  were 
taken  for  the  length,  a  certain  number  for  the  breadth,  of  each  lot. 

When  the  agri  had  been  measured  off,  they  were  distributed  by 
lot.  Cf.  Stenzel  Urkb.  VII :  divisio  mansorum  per  sortem,  more 
Theutonico.  The  mansi  were  often  called  sortes,  from  this  fact. 
Capitula  ad  Leg.  Sal.  LXXXVIII.  (Merkel,  p.  40)  :  mansionem 
aut  sortom.  Lauresham  Codex  CCCCXLI :  manso  et  sorte.  So  in 
DXXXVII,  DCCCXII,  DCCCCXLVII,  MMDCCLX,  MMMDLIX, 
MMMDCLXII,  MMMDCLXXXIV.  Beyer  Urkb.  134:  sortes 
ingenuiles.  Alsat.  Dipl.  LXXXIX.  Trad.  AViz.  CC.  Munst. 
Beitr.  II.  Urkb.  p.  24  :  in  villa  O.  sortes  xxx. 

Note  10.  —  Page  5. 

The  first  step  towards  the  payment  of  rent  was  probably'  taken  by 
the  tenant.  It  was  understood  that  he  was  to  bring  to  his  lord 
some  of  the  produce  of  his  labor ;  but  the  amount  was  not  neces- 
sarily described.  The  tenant  came  with  a  certain  ])ortion  of  his 
produce,  and  o.Tered  it  to  his  lord.  If  the  lord  accepted  it  and  was 
satisfied,  and  did  not  ask  for  anything  more,  a  precedent  was 
established.  The  tenants  brought  no  more  produce  to  the  lord 
than  he  had  received  in  the  first  place,  and  the  lord  was  not  satis- 
fied with  less,  if  less  was  offered.  The  rent  was  in  this  way  fixed 
by  precedent.  But  it  was  argued  that  the  slaves  ought  to  pay 
more  rent  than  the  freemen  ;  and  this  thej^  were  obliged  to  do. 
The  freemen  paid  rent  according  to  one  precedent ;  the  slaves  paid 
it  according  to  another.     New  precedents  were  then  introduced  for 


134  EARLY  HISTORY   OF  LAXD-IIOLDING. 

every  class  of  tenants,  and  new  classes  of  tenants  were  formed  b}' 
the  institution  of  new  precedents  ;  until  at  last  there  were  almost  as 
many  precedents  as  there  were  tenants.  "When  this  stage  was 
reached,  rents  were  fixed  bj^  contract  rather  than  by  precedent. 
The  introduction  of  written  documents,  whereb}^  the  contracts 
made  witli  individuals  could  be  recorded,  helped  ver^-  much  to 
bring  about  this  result.  When  agriculture  ceased  to  be  the  sole 
occupation  of  the  laboring  classes,  when  new  occupations  arose, 
these  occupations  served  as  a  basis  for  the  classilication  of  society. 
Some  men  were  fighters  ;  some  were  farmers  ;  others  were  artisans, 
mechanics,  or  tradesmen.  The  old  classification  according  to  dues 
and  services  was  given  up  as  soon  as  dues  and  services  came  to  be 
fixed  b}'  contracts  between  individuals.  The  classification  accord- 
ing to  occupation  was  then  introduced.  AVherc  the  occupations 
became  hereditarj',  a  system  of  castes  arose.  This  system  has 
never  been  rigid  in  Western  Europe,  however,  as  it  has  been  in 
India  5  and  other  countries  of  the  East. 

Note  11.  —  Page  5. 

This  interpretation  will  perhaps  surprise  the  reader.  It  has  not, 
so  far  as  we  know,  been  offered  before.  That,  however,  can  be  no 
ground  of  ol)jection  to  it.  The  words  used  by  Tacitus  bear  the 
interpretation  ;  and  it  is  consistent  with  the  testimony  of  the  later 
records,  and  with  all  tliat  wc  know  regarding  the  divisions  and  dis- 
tributions of  land  in  later  times.  The  spatia  camporum  of  Germ. 
2G  are,  accordinglj',  the  quarentenae,  furlam/s,  wannen  or  gewannen, 
wanden  or  gewendeyi,  of  the  open-field  system.  The  quarentenae 
were,  properlj'  speaking,  lengths  of  forty  rods,  as  in  Kemble's 
Codex  CCXIII  and  CCXXI  (see  also  Spelman  sub.  voc.  quaren- 
tena)  ;  but  the  spaces  or  sections  in  which  the  original  lots  were 
redistributed  being  quite  regularly'  forty  rods  long  or  wide,  these 
spaces  or  sections  came  to  be  called  quarentenae.  The  quarentenn 
is  of  course  the  YLngYvsh.  furlong  (the  furrow-long).  This  word  was 
used  to  describe  the  acre  because  it  was  always  a  furrow  long.  See 
Lib.  de  Hyd.  p.  81  :  tres  acrae  quod  lingua  Anglorum  dicitur  tiny 
furlang.  Cf.  Lacoml)l(>t  Urkb.  48  :  dedit  Clcrfridus  xx  furlangas. 
See  also  Corb.  Trad.  341 .  The  word  furlong  was  used  in  the  same 
way  to  describe  any  piece  of  land  which  was  a  furrow  long.     In 


NOTES  AND  REFERENCES.  135 

this  way  fields  containing  many  acres  came  to  he  called  furlongs. 
80,  in  the  Winslow  Manor  Rolls,  a  MS.  in  the  library  of  Cambridge, 
England.  See  the  passage  citi'd  in  Mr.  Seebohm's  book  (pp.  27- 
29)  :  h  aci-c  in  Clayforlong,  h  acre  in  Brereforlong.  There  were 
several  or  manj-  half-acres  in  each  forlong.  The  German  words 
which  are  used  to  describe  the  spaces  or  sections  in  which  tlie  origi- 
nal lots  were  redistributed,  — the  words  gewannen  or  gewenden^  — 
refer  us,  not  to  the  length  of  the  furrow,  but  to  the  turning  of  the 
plough  at  the  end  of  it.  The  spaces  or  sections  were  called  gewan- 
nen or  gewenden,  because  the  ploughs  turned  back  and  forth  within 
them.  The  nature  of  the  farlanga  or  gewannen  may  be  studied 
upon  the  maps  of  old  villages.  Mr.  Seebohm  publishes  a  map  of 
Hitchin  fields,  in  Herts.  See  others  in  Prof.  Meit;ien's  Introduc- 
tion to  Cod.  Dipl.  Siles.  Bd.  IV.  See  also  his  other  work,  Der 
Boden  des  Preussischeu  Staates,  Bd.  I.  pp.  353,  3G2,  363  ;  and 
the  article  entitled  "  Die  Ansbreitung  der  Deutschen  in  Dcutsch- 
land,"  in  the  Jahrbiicher  fiir  Nationalokonomie  und  Statistik, 
Jahrg.  XYII.  Bd.  I.  The  plan  of  Saarhoelzbach,  in  the  district 
of  Merzig  on  the  Saar,  a  typical  example,  is  given  in  another  arti- 
cle in  the  same  periodical.     Neue  Folge,  2  Bd.  1  Ileft,  p.  38. 

It  is  possible  that  the  agri  fro  numero  cnltorum  occupati  were  re- 
distributed in  gewannen  among  the  Suevi,  in  the  time  of  Caesar. 
lie  says,  IV.  1  :  privati  ac  separati  agri  apud  cos  nihil  est.  Cf. 
Kemble's  Codex  DCXLVIII :  cassatos  segetibus  mixtis. 

Note  12.  — Pa(;e  G. 

See  Diplomata  Spuria  Arnulf.  G  :  terris  aratoriis  ad  dies  plus 
minus  22  et  quartariis  2.  Tlien  Fulda  Trad.  Cap.  42,  No.  104  : 
XX  diiu-nales,  hoc  est  quod  tot  diebus  arari  poterit.  We  meet 
with  the  Tagwerch  (a  day's  work)  as  a  measure  of  land  at  ]M.  ?>. 
XXXIV.  2,  p.  376,  and  also  in  Hist.  Frising.  Bd.  II.  Instr. 
CCCXVIII,  CCCXCII,  CCCCXXIII.  The  German  word  com- 
monly used  is  Morgen. 

Note  13.  — Page  G. 

Kenil)le's  Codex  DXIII :  quinqne  cassatos  .  .  .  nuUus  certis 
terminis  sed  jugera  jaccnt  ad  jiigeriljus.     Aljingdon  Chron.   T.  p. 


13G  EARLY   HISTORY   OF  LAND-HOLDING. 

38-1  :  ruris  paiticiilam,  v  videlicet  cassatos  .  .  .  rus  naiuquc  prae- 
taxatum  uianitestis  undique  terminis  minus  dividitur,  quia  jugera 
altiinsecus  C()i)iilata  adjacent.  Kemble's  Codex  Dili :  tres  cassa- 
tos, singulis  jiiyeribus  mixtim  in  communi  rure  hue  illucque  dispersis. 
Cr.  DCXLVIII :  XVII  cassatos  segetibus  mixtis.  The  cassati  were 
hides.  Vid.  DCXXII :  V  cassatos  .  .  .  fifhida.  Tlie  phrase  oeccr 
under  aecer,  which  occurs  several  times  in  the  Abingdon  Chron. 
(vid.  I.  pp.  248,  330,  350,  353),  seems  to  be  the  equivalent  of  the 
jugera  adjugeribus  in  Kemble's  Codex  DXIII.  The  mansi  or  cas- 
sati were  redistributed  in  acre  lots.  In  the  Codex,  CXXVIII,  we 
have  mentioned  the  acres  of  a  mansus :  mansionis  jugera.  Vid. 
Abingdon  Chron.  I.  p.  283 :  unam  mansam  cum  xii  agrorum 
quantitate.  The  agri  here  were  acres.  Vid.  p.  285.  So  in  the 
Codex  CCLXIV :  dimidium  agrum  .  .  .  healve  aker. 

In  its  origin  the  acre  was  simply-  a  field  to  plough.  The  size  of 
it  varied  indefinitel}- ;  but  it  was  usualh-  oblong,  and  approximately 
rectangular.  The  furrows  being  of  the  same  length,  and  side  by 
side,  made  it  rectangular ;  and  it  was  oblong  for  convenience'  sake, 
—  to  avoid  turning  the  plough  too  frequently.  The  furrows  were 
long,  and  there  were  few  of  them  as  a  rule.  Cf.  Lex  Baiw. 
XII.  G. 

It  is  probable  that  the  length  of  the  acres  was  at  first  determined 
hy  a  coi'd,  and  the  width  b}-  rods  ;  but  a  certain  number  of  rods 
was  afterwards  substituted  for  the  cord  as  the  measure  of  length. 
See  Mon.  Nideralt.  p.  33  :  ut  maximus  campus  per  funiculos  men- 
suraretur,  et  cuilibet  hube  xii  jugera  dcputarentur.  The  length 
of  the  acre  (i.  e.  the  length  of  its  furrows)  was  determined  b}'  the 
cord.  If  the  acre  was  less  in  width  than  in  length,  tlie  cord,  if 
used  for  the  length,  would  not  serve  for  the  width.  Something 
else  must  have  been  used.  That  was  without  doubt  the  rod.  The 
acre  of  Lex  Baiw.  I.  xiv  is  forty  rods  long  b}'  four  wide.  Our 
English  acre  is  similarly-  proportioned.  See  Statutes  of  the  Realm, 
I.  p.  206.  The  Bavarian  rod,  however,  is  ten  feet  long,  while  the 
English  rod  is  sixteen  and  a  half  feet  long.  The  acre  of  the  Bava- 
rian law  is  therefore  smaller  than  the  English  acre. 


NOTES  AND  REFERENCES.  137 

Note  14. —  Page  7. 

See  Prof.  Ilansscn's  writings,  —  his  "  Ahhandlungen,"  and 
the  recent  essa3's  in  the  Zeitschrift  fiir  Gcsammtc  Staatswissen- 
schaft;  3  Heft,  1880;  3,  1  Heft,  1882.  These  writings  are  the 
most  valuable  we  have  upon  the  remains  of  the  open-field  system 
in  German}-.  Prof.  Meitzen's  writings  are  also  of  great  value. 
See  titles  in  Note  11.  See  also  Dr.  Achenbach's  essa}-  on  the 
"  Haubergs-Genossensehaften "  (Bonn,  1863,  8°).  The  Reports 
from  her  Majest^-'s  representatives  on  the  Tenure  of  Land  in  the 
several  countries  of  Europe,  presented  to  the  Houses  of  Parliament 
in  18G9-70,  contain  some  interesting  matter  ujron  the  open-field 
system.  For  England,  see  the  Report  on  the  Agriculture  in  the 
several  Counties  of  England,  published  b}^  the  Board  of  Agricul- 
ture, or  the  Reviews  of  these  Reports  by  Mr.  Marshall  (York, 
1815-17).  The  Report  on  Commons'  Inclosure  (ordered  by  the 
House  of  Commons  to  be  printed,  August  5,  1844)  is  of  great 
interest.  Prof.  Nasse's  book  upon  the  Agricultural  Communit}- 
of  the  Middle  Ages,  translated  for  the  Cobden  Club  in  1871,  is 
well  known.  ]Mr.  Seebohm's  book,  which  has  just  been  published, 
or  will  l)e  published  ver}'  soon,  contains  a  detailed  account  of  the 
open  fields  in  England.  Other  references  might  be  given,  but  these 
will  be  found  suflleient.  In  consequence  of  the  Inclosure  Acts  in 
England,  the  Vcrkoppehmgen  in  Germany,  the  vestiges  of  the  open- 
field  system  are  fast  disappearing. 

Note  15.  —  Page  7. 

Very  good  examples  ma}-  be  seen  in  the  neighborhood  of  Ilitchin, 
in  Herts,  and  of  Luton,  in  Bedford.  Mr.  Seebohm  describes  them 
in  his  "  English  Village  Community,"  Chap.  I.  Similar  acres  may 
be  seen  in  many  parts  of  Germany,  and  in  the  Austrian  dominions. 
They  may  be  seen  also  in  Eugadiuc. 

Note  1(5. —  Page  7. 

There  is  quite  a  little  literature  upon  this  subject.  See  jMcitzcn's 
article  entitled,  "  Der  alteste  Aubau  der  Deutschen,"  in  the  Jahrb. 
fiir  Nationalokonomie  uud  Statistik,  Neuc  Folge,  2  Bd.  1  llcft,  pp. 


138  EARLY  HISTORY  OF  LAND-HOLDING. 

31,  32.  It  will  not  be  worth  our  while  to  go  into  the  subject ;  but 
it  should  be  observed  that  it  is  by  no  means  certain  that  these 
Hochacher  were  the  work  of  Germans.  They  may  have  been 
made  by  the  Kelts,  who  lived  in  the  Bavarian  IlighUinds  before  the 
Germans,  The}-  may  have  been  the  work  of  the  Romans.  Nor  is 
it  to  be  inferred  that  they  were  tilled  b}"  freemen.  It  must  not  be 
inferred  that  they  were  the  common  fields  of  a  free  village  commu- 
nity-. They  may  have  been  the  fields  of  a  manorial  village,  a  vil- 
lage of  tenants,  serfs,  or  slaves.  The  question  as  to  the  ownership 
of  land  in  earl}-  times,  the  question  as  to  whether  the  land  was  first 
private  property  or  common  property,  cannot  possibl}-  be  solved  by 
reference  to  the  Hochdcker. 

Note  17.  —  Page  8. 

See  Germania  26,  and  the  Codex  S.  Galli  214:  trado  quicquid 
genitor  mens  W.  genetrice  mea  K.  ad  dodidem  egisset,  id  sunt  ii 
calonicas,  Gerboldo  et  Ilcilboldo,  et  analies  terris,  mancipiis,  pra- 
tis,  pascuis,  etc.  In  Abingdon  Chron.  I.  p.  304,  we  have  nine  hides 
lying  in  among  other  partible  lands,  meadows  in  common,  and  other 
lands  in  common :  thas  nigon  hida  lieggead  on  gemang  othran 
gedallande  feldlacs  gemane,  and  maeda  gemane,  and  yrthland 
gemaene.     Cf.  Ine  42. 

During  the  migrations  the  arable  lots  were  shifted  from  place  to 
place,  and  the  number  of  them  varied  according  to  the  number  of  cul- 
tivators. Afterwards,  when  the  people  settled  down  permanently, 
the  lots  belonging  to  the  free-lord  were  shifted  from  one  position 
to  another  round  about  his  farmstead.  The  number  of  them  was 
increased  or  diminished,  as  he  had  more  or  not  so  man}-  cultiva- 
tors at  the  farmstead,  or  attached  to  it  in  houses  of  their  own.  The 
land  upon  which  the  arable  lots  were  tlius  shifted  about  was  called 
the  partible  or  common  land,  as  in  the  passages  above  cited  from 
Abingdon  Chron.  and  Ine. 

During  the  jMiddle  Ages  the  word  ahncnd  came  into  use.  It  was 
used  to  describe  the  land  which  was  not  under  the  plough,  which 
served  to  supply  the  animals  with  grass  and  winter  fodder.  The 
word  appears  to  be  derived  from  the  Keltic  al,  meaning  fodder,  and 
mrmi,  maine^  an  estate,  property,  or  min^  meaning  land,  a  field  or 
lilain.     The  original  meaning  of  the  word  was  therefore ybc?(/er-/rtnc?, 


NOTES  AND   REFERENCES.  139 

not  common  land,  as  has  been  supposed.  But,  as  the  word  was 
used  constantl}'  to  describe  undivided  and  common  lauds,  it  is 
natural  that  it  should  acquire  a  new  signilication.  See  Mone  Zeits. 
I.  p.  385  et  seq.  In  the  3'ear  1270  Count  Otto  v.  Eberstein  alludes 
to  his  fodder-lands  as  almendis  nostris  per  totum  dominium  nostrum 
constitutis.  Ibid.  p.  371.  From  Count  Otto's  point  of  view  the 
almendae  w^ere  private  property.  The  tenants,  however,  regarded 
them  as  common  lands.  In  the  course  of  the  Middle  Ages  the 
tenant's  point  of  view  prevailed  over  that  of  the  landlord,  and  the 
almend  was  regarded  simpl}'  as  the  common  land.  With  this  idea 
of  it,  it  is  not  surprising  that  the  etymologists  have  been  trying  to 
connect  the  word  almend  with  the  word  allgemein  (i.  e.  universal, 
general,  common) ,  making  the  etymology  conform  with  the  mean- 
ing. They  forget  that  words  often  change  their  meanings  by 
getting  new  ones. 

Note  18.  — Page  8. 

The  hide  and  the  plough-land  are  the  same  thing.  See  Hen. 
Hunt.  Hist.  Angl.,  at  the  3-ear  1008  (M.  II.  B.  p.  7.")o)  :  hida  autem 
Anglice  vocatur  terra  unius  aratri  culturae  sufficiens  per  annum. 
The  hides  here  mentioned  are  called  cassati  in  Flor.  Wig.  Chron. 
(M.  II.  B.  p.  585).  Plough  lands  are  fretjuently  mentioned  in  the 
records.  See  Kemble's  Cod.  XXVII,  XLIII,  LXXVII,  LXXXV  : 
partem  terrae,  id  est  decem  aratrorum,  CXIV,  CXXI,  CXXXTT, 
CXXXV,  CLII,  CLIII,  CLVII,  CLX :  terram  juris  mei  decern 
aratrorum,  CLXXIX,  CLXXXVII,  CXC,  CXCIX.  The  plough- 
land  was  called  a  suhmg  in  Kent.  See  Domesday  for  that  county. 
The  word  carrucata  is  used  frequently  in  Domesday  to  describe  the 
plongh-land,  the  plough  being  described  by  the  word  cnrmca.  It 
is  doubtful  whether  the  carrucata  is  mentioned  before  the  Conquest. 
It  occurs  in  Kemble's  Codex  CCXIII ;  but  the  document  is  of 
doubtful  authenticity.  In  Diplomata  Spuria  82,  we  have  the  terra 
unius  carrucae.  See  Fulda  Trad.  Cap.  40.  4  :  ccxl  jugera  ad 
iiii  aratra ;  and  Fulda  Codex  744 :  territorio  duobus  aratris 
sufficiente.  Fez  Thesaurus  VI.  Part  III,  p.  63  :  quatuor  araturae. 
Vid.  also  Cod.  Morav.  CXXX  :  unam  .araturara  cum  sorvientc.  So 
in  CLXII  and  CXCIV :  terram  unius  aratri  cuiii  iniiiisteriali. 
CXCVII :  aratra  cum  rusticis.      So  in  CXCVIII,   CCX  :    terram 


140  EARLY  HISTORY  OF  LAND-HOLDING. 

ad  duo  aratra,  CCXIX :  terram  ad  duo  aratra  cum  cultore  arante. 
Cf.  C'C'XXXI  and  CCLIII.  The  word  ploiujli  occurs  in  Rothar 
CCXCIII :  plouuni  aut  aratrura.  The  German  word  pjiug  is  used 
to  describe  the  plough-laud  as  well  as  the  plough. 

Note  19.  — Page  9. 

At  Alvertunc,  for  example,  in  Yorkshire,  the  land  was  estimated 
at  forty-four  plough-lands,  but  thirty  ploughs  were  found  to  be  suf- 
ficient for  the  work.  At  Walesgrif  the  land  was  estimated  at  fifteen 
plough-lauds,  but  eight  ploughs  were  found  to  be  suflflcient  for  the 
work.  See  Domesday  I.  p.  299.  Any  number  of  similar  examples 
might  be  given.  It  follows  that  the  holders  of  the  plough-lands 
must  have  done  the  ploughing  co-operatively,  unless  they  used  the 
ploughs  in  turn.  At  Walesgrif  five  tenants  used  two  ploughs.  At 
Picheringa  (also  on  p.  299)  the  land  was  estimated  at  thirty-seven 
plough-lands  ;  but  the  work  could  be  done  Avith  twenty  ploughs. 
Twent}-  of  the  tenants  used  six  ploughs.  An^'  number  of  similar 
examples  might  be  given.  It  should  bo  remembered  that  at  this 
time  the  jjlough-lands  were  usually  divided  into  fractions,  and  there 
were  often  several  tenants  on  each  })lough-lan(l.  It  appears  to  have 
been  quite  customar}-  to  put  four  tenants  on  each  plough-land.  The 
quarter-plough-lands  were  called  yard-lands,  or  virgates.  The  holder 
of  the  virgate  had  one  rod  (virga)  in  the  width  of  each  acre,  and  the 
width  of  the  acre  was  four  rods.  Compare  Chron.  Petrob.  (Liber 
Niger)  p.  157  :  ct  de  istis  x  hidis  tenant  xl  villani  xl  virgas 
terrae.  It  will  be  remembered  that  the  plough-land  and  hide 
are  the  same  thing.  Vid.  Hen.  Hunt.  Hist.  Angl.  A.  D.  1008 : 
hida  Anglice  vocatur  terra  unius  aratri.  Hen.  Hunt,  wrote  this 
about  the  year  1135.  The  date  of  Liber  Niger  is  between  the  years 
1125  and  1128. 

The  fact  that  there  were  often  not  so  many  ploughs  as  plough- 
lands  led  to  confusion.  Sometimes  we  hear  of  plough-lands  con- 
sisting of  plough-lands.  We  have  seen  how  the  word  sulung  was 
used  in  Kent  to  describe  the  plough-land  ;  and  yet  Coke  tells  us 
that  seven  solins  were  equal  to  scA'cntecn  plough-lands.  He  cites 
a  passage  from  Domesday,  which  we  have  not  been  able  to  verify  : 
septem  solina  terrae  sunt  17  carucat.  Coke  Litt.  5  a.  The  expla- 
nation of  the  ditriculty  is  that  there  were  seven   ploughs  used  upon 


NOTES  AND   REFERENCES.  141 

seventeen  plough-lands  ;  there  were  plough-lands  within  plougli- 
lands.  See  Domesda}-  S.  Paul,  p.  58  :  vi  hidis  trium  solandoruin. 
Here  there  were  three  ploughs  to  six  plough-lands.  The  hide  was 
the  plough-land,  yet  it  contained  plough-lands  ! 

Note  20.  — Page  9. 

Capit.  de  Vil.  XXXVII :  prata  nostra  ad  tempus  custodiant. 
Compare  Lex  "Wisig.  Lib.  VIII.  Tit.  III.  12  :  qui  in  pratum  eo 
tempore  quo  defenditur  pecora  niiscrit. 

Note  21.  — Page  9. 

Ritz  Urkb.  15  :  prata  ad  fenum  colligendum  carradas  lx.  Alsat. 
Dipl.  XXXVII :  de  prata  unde  potest  secare  de  feno  carradas 
centum  triginta.  Wirtemb.  Urkb.  CXX :  de  pratis  carradas  c. 
Mon.  Nideralt.  p.  108  :  de  pratis  ubi  possunt  colligi  de  feno  carrade 
quadringente.  Trad.  Wiz.  II,  V :  prato  ubi  potest  annis  singulis 
plus  minus  v  carra  de  feno  colligere.  Cf.  also  XXI,  XXV,  XLII, 
and  Fulda  Cod.  42,  96.  Hist.  Frising.  CCCXIV :  xii  carradas 
de  pratis.  Ibid.  CCCXLVIII :  de  pratis  carradas  l.  So  in 
CDLX,  DLXII,  DCCXXXI :  de  pratis  carradas  ccc.  Read  also 
DCCXXXIX,  DCCXLI,  DCCCLXXVI.  So  elsewhere.  It  is 
useless  to  multiply  examples.  In  certain  cases  the  grass  land  was 
estimated  according  to  the  number  of  animals  that  could  be  main- 
tained by  the  fodder  produced  upon  it.  See,  for  example,  Fulda 
Trad.  Cap.  7.  51  ;  terram  videlicet  pascualem  pecoribus  xvi,  idem 
tantum  prati  quantum  sufficiat  xv  bubus,  vel  xv  animalibus,  per 
hiemem  cum  feno  pasci ;  quod  potest  computari  ad  xv  carradas. 
This  supports  the  statements  made  on  the  second  page  of  our  text ; 
that  the  amount  of  grass  land  that  the  freeman  occupied  depended 
upon  the  number  of  animals  he  had  to  maintain  through  the  winter. 
It  is  possil)le  that  the  tenants  were  sometimes  allowed  to  take  from 
the  land  as  much  grass  as  could  be  cut  in  one  or  more  days.  The 
measure  of  the  meadow  land  was  in  certain  places  the  day's  work, 
TiKjwerch..  References  were  given  in  Note  12.  The  word  Tcuj- 
werch  may,  however  refer  to  the  work  of  measuring  off  tlie  ground, 
and  not  to  that  of  cutting  the  grass.  See  Fulda  Trad.  Cap  7.  91  : 
pratorum  quantum  una  die  a  x  viris  meti  poterit. 


142  EARLY  HISTORY  OF  LAND-HOLDINa. 


Note  22.  —  Page  9. 

We  read  of  ceorls  with  common  or  partible  meadows  in  Ine  42. 
We  do  not  know,  however,  how  these  meadows  were  divided.  We 
have  to  come  down  to  quite  recent  times  to  get  an}-  information 
upon  this  point.  The  records  take  little  note  of  the  internal  affairs 
of  the  tenant  communities.  The  modes  of  dividing  and  distribut- 
ing the  land  are,  therefore,  known  to  us  only  in  cases  where  old 
customs  have  been  preserved  to  modern  times.  Fortunatclv  these 
cases  are  quite  numerous,  and  they  have  been  described  more  or 
less  satisfactorily  by  modern  writers.  See  references  in  Note  14. 
The  following  passage  from  Giles's  "History  of  Bampton  "  gives 
us  a  very  good  account  of  a  lot-meadow.  AVe  give  the  passage  at 
second  hand,  from  Mr.  Charles  Elton's  Observations  on  the  Com- 
mons Bill,  187G  (London,  Wildy  and  Sons). 

"  The  common  meadow  is  laid  out  hx  boundar}'  stones  into  tliix'- 
teen  large  divisions  technicall}-  called  layings-out;  these  alwa3-s 
remain  the  same,  and  each  is  divided  into  four  sets.  As  the 
meadow  is  not  equally  fertile  in  ever}-  part,  it  is  desirable  to  adopt 
some  mode  of  giving  all  an  equal  chance  of  obtaining  the  best  cuts 
for  their  cattle.  From  time  immemorial  there  have  been  sixteen 
marks  established  in  the  village,  each  of  which  corresponds  with 
four  yard-lands  (allotments  in  the  lands  of  the  village).  A  certain 
number  of  the  tenants  consequently  have  the  same  mark,  which 
they  alwaj's  keep,  the  use  of  these  marks  enabling  the  tenants 
ever}'  year  to  draw  lots  for  their  portions  of  the  meadow.  When 
the  grass  is  fit  to  cut,  the  grass  stewards  and  sixteens  summon  the 
tenants  to  a  general  meeting,  and  the  following  ceremony  takes 
place.  Four  of  the  tenants  come  forward,  each  bearing  his  mark 
cut  on  a  piece  of  wood,  —  as  the  frying-[)an,  the  hern's  foot,  «S:c. 
The  first  drawn  entitles  its  owner  to  have  his  portion  in  Set  1,  the 
second  in  Set  2,  and  so  on  ;  and  thus  four  tenants  having  obtained 
their  allotments,  four  others  came  forward,  and  the  process  is  re- 
peated. AVhen  the  lots  are  all  drawn,  each  man  cuts  out  his  mark 
upon  his  piece  of  ground,  which  in  many  cases  is  so  narrow  a  strip 
that  he  has  not  width  enough  for  a  full  sweep  of  the  scythe  .  .  . 
and  another  peculiarity  of  the  system  is  that  a  single  farmer  may 
have  to  cut  his  portion  of  the  grass  from  twenty  different  places." 


NOTES  AXD   REFERENCES.  143 

See  also  Joshua  "Williams's  Eights  of  Common  and  other  Prescrip- 
tive Rights  (London,  1880,  8*^).  Some  drawings  of  the  "  marks" 
are  given  in  this  work,  facing  p.  90.  B}-  the  kindness  of  Mr.  Wil- 
liams the  writer  was  permitted  to  see  some  of  the  originals,  —  little 
notched  sticks  about  two  inches  long.  Similar  marks  were  used 
in  Germany.  See  Otto  Beck,  Beschreibung  des  Regicrungsbezirks 
Trier  (3  vols.,  18G8-1871,  4°),  Vol.  I.  p.  426,  and  the  Appendix. 
A  great  man}-  drawings  of  marks  are  given.  Compare  Germ.  10  : 
sortium  consuetudo  simplex,  virgam  frugiferae  aibori  decisam  in 
surculos  amputant,  eosque  notis  quibusdam  discretos  super  caudi- 
dam  vestem  temere  ac  fortuito  spargunt. 

Note  23.  — Page  10. 

The  rotation  system  was  adopted  to  prevent  quarrelling  in  re- 
gard to  the  distribution  of  lots.  The  lots  were  seldom  efjual  in 
value,  so  those  who  got  the  poorer  ones  were  apt  to  complain. 
Redistributions  were  called  for ;  but  the  redistributions  served 
merel}'  to  substitute  one  bod}-  of  discontents  for  another.  Then  it 
was  suggested  that  the  lots  might  be  taken  in  turn,  in  rotation. 
By  this  means  all  reasonable  cause  of  dispute  was  removed. 

Note  24.  — Page  10. 

See  references  under  Note  14.  It  is  not  our  purpose  to  enter 
much  into  the  internal  histor}-  of  the  tenant  communities  of  the 
Middle  Ages.  It  is  a  subject  which  stands  apart,  by  itself.  Our 
object  is  to  explain  how  these  communities  came  into  existence. 
It  is  their  origin  and  place  in  history  which  we  are  here  consider- 
ing. For  this  reason,  we  shall  not  take  up  the  open-field  system 
in  its  details ;  nor  shall  we  describe  at  all  the  various  systems  of 
tillage  which  were  adopted  or  introduced  in  different  places.  The 
histor}'  of  the  three-field  s3-stem,  the  system  which  was  so  generally 
introduced  during  the  Middle  Ages,  is  an  extremel}'  interesting  sub- 
ject, but  it  lies  beyond  the  limits  of  our  investigation.  It  was 
not  introduced  much  before  the  tenth  century.  It  is  nowhere  re- 
ferred to  before  the  eighth. 


144  EAELY  HISTORY  OF  LAND-HOLDING. 

Note  25.  — Page  10. 

Miinst.  Beitr.  II.  No.  Ill :  terra  xxx  animalium.  Fulda  Trad. 
Cap  7.  14:  pasciia  xiiii  pcciuluin.  Ibid.  18:  terrain  paseualem 
quatuor  bouin.  Ibid.  20  :  x  pecudum  pascua.  Cf.  also  22,  40, 
52,53,  GO,  Gl,  72,  110,  113,  121,  etc.  Trad.  Wizenb.  IV:  silva 
mihi  aspicientera  ad  poreos  crassare  plus  minus  xv.  Sec  also 
CXLVI,  CCLXXII.  Lacomblet  Urkb.  Gl  :  terrain  xx  animalium 
et  dimidiam  unius.  Also  Ibid.  5G  :  x  porcorum  pascuam.  These 
few  examples  may  be  sufficient  to  show  that  property  in  pasture 
land  was  quite  commonly  estimated  according  to  the  number  of 
animals  of  one  kind  or  another  that  could  be  supported  upon  it. 
When  the  free-lord  had  a  pasture  for  a  large  number  of  animals, 
he  allowed  his  tenants  to  turn  out  each  a  certain  small  number,  five 
or  ten,  more  or  not  so  man}'.  In  the  Lauresham  Cod.  XXXIII, 
Ansfrid  has  a  pasture  for  a  thousand  hogs.  Three  free  tenants 
turn  out  ten  apiece,  while  the  slaves  turn  out  five  apiece  :  unusquis- 
que  autem  de  scrvis  i])sis  de  sua  huba  debet  mittcre  in  sylvam 
poreos  V.  The  tenants  had  what  are  called  in  the  English  law 
"rights  of  common,"  that  is  to  say,  rights  to  enjoy  the  product 
of  land  not  their  own.  1'heir  rights  were  stinted,  as  the  phrase  is, 
because  their  enjoyment  of  the  land  was  defined  and  limited.  The 
free  tenant,  for  example,  had  only  so  much  of  the  herbage,  nuts, 
and  so  on,  as  ten  hogs  could  consume  during  the  3'ear.  Where 
there  was  plenty  of  land,  more  than  enough  for  all  the  animals,  the 
rights  of  common  were  usually  unstinted.  Mr.  Charles  Elton's 
Law  of  Commons  and  Waste  Lands  (Loudon,  1868,  8°)  will  be 
found  instructive  in  this  connection. 

Note  2G.  — Page  10. 

We  know  that  the  tenants  required  wood  for  building  purposes 
and  for  fuel ;  and  inasmuch  as  we  have  no  records,  of  earl}'  date,  to 
show  that  the  amount  which  one  man  could  take  was  limited,  we 
ma}'  infer  that,  in  early  times,  the  wood  was  cut  ad  libitum.  There 
was  probably  plenty  of  forest  land,  and  no  occasion,  therefore,  to 
limit  rights  of  enjoyment  in  it.  In  later  times,  when  boundaries 
were  fixed,  and  forest  lands  came  to  be  held  in  severalties,  no 
man  could  cut  wood  except  upon  his  own  land  ;  and  the  tenants, 
of  course,  could  not  cut  wood  beyond  the  territory  of  their  lord. 


NOTES  AND  REFERENCES.  145 

Sometimes  the  tenants  received  severalties  of  forest  land.  Sec 
Fulda  Trad.  Cap.  41.  IG  :  xxx  jugera  et  unum  lidum  nomine  Cuteo, 
et  silvam,  sicut  alii  lidi  habere  videntnr,  xl  jugerum.  In  such 
cases,  of  course,  the  tenants  could  not  cut  an}*  wood  outside  the 
limits  of  their  respective  allotments.  As  a  rule,  however,  the  ten- 
ants had  no  allotments,  but  siniplv  rights  of  common  in  the  forest 
of  their  lord.  These  rights  of  common  {common  of  estovers^  as  it 
is  called  in  the  English  law%  in  Braeton  IV.  41)  were  usually  un- 
stinted, in  the  earl}-  time  of  which  we  are  speaking. 

Note  27.  — Page  11. 

Fnlda  Trad.  Cap.  42.  30') :  hubam  unara  dominicalc,  scrvi- 
les  vero  hubas  xiiii.  So  in  Laureshani  Cod.  XXXIV.  See 
also  XXXVII,  LXXXIII,  CXII,  MMDCXXI,  MMDCXXII, 
MMDCLXXXII,  MMMDCLI.  Alsat.  Dipl.  XCV :  hobas  sep- 
tem  excepto  terra  dominicata.  Cod.  S.  Galli  38  and  143 : 
hobas  V,  excepto  ea  que  in  usus  proprios  collere  videtur  quod 
dicitur  hoba  siliga  [salica].  Cf.  Beyer  Urkb.  II.  Add.  21  and 
40 :  dominicalem  terram,  legali  verbo  selegut.  Lauresham  Cod. 
MMCCLVII :  selhul)en.  Cod.  S.  Galli  331:  unum  agrum  sali- 
cam.  372  :  casa  salica  cum  terra  sua  salica.  Munst.  Beitr.  II. 
Num.  V:  selihova.  Num.  VIII:  dominicatos  mansos  quod  vulgo 
dicitur  selehouva.  Num.  Ill :  niansus  dominicales.  Giinther  Cod. 
Dipl.  I.  Num.  20  :  mansum  indominicatum  cum  aliis  mansis  sen'ili- 
bus.  Trad.  Corb.  237.  Ritz  Urk.  IT) :  mansum  indominicatum 
cum  aliis  mansis  xi.  See  also  Ibid.  12.  Reg.  Wcstfal.  XV  and 
XXIII :  casas  dominicatas  cum  territorio  dominicali,  necnon  et 
mansos  triginta.  So  in  XXV.  Hist.  Trev.  LXXVIII,  CXXXIX, 
CLI :  mansum  indominicatum  et  alios  mansos.  AlsoCLII,  CLIII, 
CLXVII :  mansum  indominicatum  cum  xi  subjugalibus.  See  the 
Registrum  I'ruraiense,  especially  the  first  of  the  Caesarius-Glossae 
where  the  mansi  indominicnti  are  defined  as  agri  curiae.  See  also 
Beyer  Urkb.  Nos.  173,  273:  casa  dominicali  cum  xii  mansis  in- 
genuilibus  et  xx  servilibus.  Then  Cod.  S.  Galli  3r)7  :  mansum 
dominicatum  cum  aliis  exterius  inde  pertinentibus.  The  domain 
land  is  called  in-land  in  the  English  records  ;  and  the  land  occu- 
pied by  the  tenants  is  called  gesettes-land.  The  distinction  between 
lord's  land  and  tenant's  land  is  clearl}'  drawn  in  Domesday  and  in 
the  Chartularies. 

10 


146  EARLY   HISTORY   OF  LAND-HOLDING. 


Note  28.  — Page  12. 

The  student  who  desires  to  go  into  the  subject  of  rents,  dues,  and 
services,  will  lind  the  following  list  of  references  useful,  and  approx- 
imatel}'  complete.  The  subject  is  one  of  great  interest.  See  Germ. 
25.  Lex  Alam.  XXII,  XXIII.  Lex  Baiw.  I.  Cap.  14  ;  VI.  Cap. 
2.  Capitulare  Aquisgranense  A.  D.  789,  LXXIX  ;  Capit.  de  Villis  ; 
Brev.  Iter.  Fisc.  Alsat.  Dipl.  CCXLIX  (Mauri.  Chart.).  For- 
mula CL.  Wirtemb.  Urkb.  VHI,  XXVI,  XXXIV,  LXXIX. 
Polyp.  Irniinon.  Tol}}).  S.  Remi.  Chart.  Silhiense,  pp.  G7  and  97 
to  lOG.  Keg.  Prumiense.  Beyer  Urkb.  120,  250,  332,  343,  400,  462. 
Nachtrag  I.  34;  Nachtrag  II.  10,  11,  13,  14,  15,  16.  Lauresham 
Codex  CXL,  DCCCLXVIII,  DCCCCXXXVI,  MDCCCCLXXVII, 
and  M:\IMDCLI-MMMDCLXXXIII  inclusive.  Trad.  Wiz.  p.  269 
et  seq.  Cod.  S.  Galli  24,  39,  63,  89,  91,  93,  113,  117,  128. 
Mohr  Cod.  Dipl.  193.  Hist.  Frising.  I.  Part  L  p.  126.  Also 
Num.  CDLXXXI.  M.  B.  III.  p.  454.  M.  B.  XXII,  p.  15,  and 
p.  131  et  seq.  Lacomblet  Urkb.  88,  290,  341,  351  ;  also  Xachlese 
(Bd.  4)  608.  .  Lacomblet  Archiv  I.  p.  309  et  seq.  Fulda  Trad. 
Cap.  4.  133;  Cap.  6.  99;  Cap.  7.  31  et  seq.  Read  also  chapters 
13,  36,  37,  43,  44  (Nos.  26,  37,  50),  45,  65.  Fulda  Codex 
225,  364,  754,  804,  839.  Giinther  Cod.  Dipl.  44  and  76.  Miinster 
Beitr.  II.  Num.  I,  III,  XIX,  XX,  XXXVI,  XXXVII.  Osnabrk. 
Gesch.  Num.  LXXXX.  Lisch  Urkb.  II.  Num.  CLXXVIII  et  seq. 
Arnsb.  Urkb.  43.  Henneb.  Urkb.  CVIII,  CXX,  CXL.  Reg. 
Westf.  XXVI.  Reg.  Bad.  5,  6,  15.  M.  B.  XXVIII,  p.  158  et 
seq.  ;  also  p.  455  et  seq.  M.B.  XXIX  (2),  p.  214  et  seq,  and  p. 
381  et  seq.  M.  B.  XXXIV  (2),  p.  348  et  seq.  M.  B.  XXXVI. 
Ennen  :  Quellen  zur  Geschichte  der  Stadt  Koln,  Bd.  II.  Num.  201. 
Dipl.  Merow.  54,  96.  Ine  67.  Rect.  Sing.  Pers.  (Thorpe,  p.  431 
et  se(|.).  Domesday.  Abingdon  Chron.  (II.  App.  III.)  Chron. 
Petrob.,  the  Liber  Niger  in  the  Appendix.  Cart.  Gloucest.  (the 
Extenta  in  Vol.  III.)  Then  Domesday  S.  Paul.  Passages  of 
interest  may  be  found  in  the  other  Cartularies.  The  Rotul.  Hun- 
dred, is  also  one  of  the  most  important  sources  of  information 
regarding  rents,  dues,  and  services  ;  and  there  are  passages  in 
Fleta  upon  this  subject. 


NOTES  AND  REFERENCES.  147 


Note  29.  — Page  12. 

Registrum  Prumiense,  Glossa  1  :  mansi  absi  sunt  qui  non 
habeut  cultores,  sed  dominus  eos  habet  in  sua  potcstate.  See 
examples  in  tlie  Reg.  I'luui.  See  Hist.  Trcv.  CLI :  mansos  ix 
absolutes  absque  uUo  hominc.  Also  Indie.  Arnonis  I :  mansos  x 
inter  vestitos  et  absos.  Hist.  Prising.  CCVI :  mansos  vestitos 
vim,  cum  terrio  cultum  et  incultum.  "Westf.  Urkb.  8 :  hobas 
X  possessas.  Fulda  Cod.  80G  :  mancipiis  hubas  possidentibus  et 
incolentibus.  Cod.  S.  Galli  372  :  hobas  tres  vestitas.  Ried  Cod. 
Dipl.  Ratisb.  LXXV :  hobas  duas  absas.  Ibid.  LXXVI  and 
CXX  :  hobas  possessas. 

Note  80.  — Page  12. 

The  tenants  are  described  as  famiUae  in  Baed  I.  2.5  ;  II.  9  ; 
III.  4,  24,  25;   IV.  3,   13,  16,  23;  V.   19.       So  in  Trad.  Corb. 

I,  2,  3,  4,  G,  30,  45,  65,  93,  114,  133,  147,  350,  414,  438:  inter 
omnia  sint  familie  xii  cum  territoriis  [id  est  fundos.  See  Lacom- 
blet  Urkb.  Bd.  1,  No.  170].  This  would  be,  according  to  Germ. 
26,  agri  pro  xii  cultoribus.  The  tenants  are  described  as  familiae 
in  Fulda  Trad.  Cap.  3.  196;  in  Brev.  Not.  Salzb.  XVII.  2;  in 
Wirtemb.  Urkb.  VIII,  Reg.  Westf.  XIX,  and  in  man}-  other  places. 
See,  lastly,  Osnabrk.  Gesch.  XXI :  septem  familias  id  est  septem 
hobas.  That  would  be  ayri  pro  vii  cultoribus.  The  tenants  are 
described  as  manentes  in  Kemble's  Codex  XIX,  XXXV,  CHI, 
CXIX :  terram  duarum  manentium  juris  mei.  Many  other  exam- 
ples might  be  cited.  In  DCLV  the  land  of  five  manentes  is  de- 
scribed as  five  hides.  That  would  be  ogri  pro  v  cultoribus  occupati. 
Manentes  are  mentioned  in  Fulda  Codex  188.     Brev.  Not.  Salzb. 

II.  9  ;  IX.  2,  4  ;  XI  and  XII ;  in  Hist.  Trev.  LXVI ;  and  in  many 
other  passages.  For  mansionarii  see  Wirtemb.  Urkb.  VIII ;  Ried 
Cod.  Dipl.  Ratisb.  No.  CIII.  In  CVII  we  have  a  mansum  cum 
mansore.  Tlien  see  Du  Cange  sub.  voc.  casarii.  Cassati  are  referred 
to  very  frequenth'  in  Kemble's  Codex.  The  passage  DCXXII : 
V  cassatos  .  .  .  fif  hida,  has  been  already  cited.  This  would  be 
agri  pro  v  cultoribus  occupati.  Cf.  also  Dipl.  Arnulf.  13  ;  Fulda 
Codex  113:  servi  cassati  ;  and  364  :  cassatum  servum  cuui  ehvbo- 
ratu.      References   for  sarvi  and   niaucipia  were  given   in  Note   7. 


148  EARLY  HISTORY   OF  LAXD-HOLDIXG. 

Trihutarii  are  often  referred  to  in  Kenihle's  Codex.  See  XXXVI, 
C'XVIII.  CXL,  for  examples.  See  also  Mon.  Scheftl.,  Tradi- 
tiones  HI,  VI,  VII,  IX.  Also  Ried  Cod.  Dipl.  Ratisb.  CXX : 
hobas  possessas  cum  parscalv/ds  vel  trihutariis.  In  Reg.  Bad.  12 
we  have  censales  homines  nice  familUie  ;  in  43  :  viri  censuales.  Rus- 
ticani  are  mentioned  in  Rotliar  CCLXXXV,  villani  also.  The  lat- 
ter word  occurs  all  through  Domesda}-.  Rustici  are  referred  to  in 
Stenzel  Urkb.  X  ;  and  in  Cod.  Morav.  CCCLXXVIII.  Accolae  are 
repeatedly  referred  to  in  the  formula  accolabus  manci'piis,  in  aliena- 
tions. Coloni  are  mentioned  in  iuiuimerable  records.  See,  for 
examples,  Mohr  Cod.  Dipl.  9  ;  Keg.  Westf.  XXXV :  colonos  et 
uuinsos  XVI.  Hist.  Trev.  LXIII.  Westf.  Urkb.  4.  Cod.  Dipl. 
Lubec.  II.  DXLiv.  Stenzel  Urkb.  XLVII,  CXIX.  Lastly,  Cod. 
Dipl.  Siles.  Bd.  IV.  XXVII.  p.  21.  Inquilini  also  are  mentioned 
in  this  passage.  Liti  ai'e  mentioned  in  most  of  the  Folk-Laws, 
and  in  many  of  the  documents.  Reg.  AVestf.  XXIV.  Lauresham 
Codex  ^NOIMDCLXXVIII :  hubae  lidorum.  Fulda  Trad.  Cap. 
43  :  lidi  pleni  .  .  .  lidi  dimidii.  The  student  should  observe,  in 
verifving  these  examples,  how  the  great  mass  of  the  people  were 
settled  as  tenants  upon  comparatively  few  lai'ge  estates,  and  he 
should  observe  too  how  these  great  estates  consisted  regularly  of 
tenant  allotments  ;  i.  e.  agri  pro  numcro  cultorum  occupati.  The 
student  will  find  that  this  phrase  of  Tacitus  has  an  almost  uni- 
versal ai)plicalion. 

Note  31.  — Page  12. 

Caesar  VT,  22.  It  is  usually'  assumed  that,  according  to  Caisar, 
nobody  liad  an}'  land  which  he  called  his  own.  The  assumption  is 
not  legitimate.  There  were  no  boundaries  between  one  man's  land 
and  another's,  so  no  man  could  sa}-  where  his  possessions  came  to 
an  end.  or  where  his  neighbor's  possessions  had  their  beginning. 
In  spite  of  that,  however,  there  was  a  great  deal  of  land  which 
the  free-lords  regarded  as  their  private  and  exclusive  property,  — 
the  home  lots,  the  arable  lots  which  were  cultivated  by  the  serfs,  the 
grass  land  which  was  reserved  for  a  ha^'  crop,  and  the  land  occu- 
pied by  tlic  animals  as  pasture  ground.  Bej'ond  the  grass  lands 
and  pasture  lands  lay  the  waste  and  forest  land.  There  one  man's 
estate  was  confounded  with  another's.     So  it  could  very  well  be 


NOTES  AND  REFERENCES.  149 

sakl.  that  noliddy  held  any  (Infinite  amount  of  land. — that  no1)0(ly 
had  any  boundaries  to  bis  possessions.  Still  be  bad  possessions,  as 
Caesar  himself  tells  us.  See  the  words  ne  latos  Jines  parare  studeant 
potenlioresque  JiuuiiUores  possessionibus  expellant. 

The  persons  whose  estates  extended  one  into  another  were  called 
co-marcani.  Tboy  were  men  who  had  a  boundary  in  common. 
The  common  boundary  was  called  a  co-marca.  We  should  describe 
it  as  a  confine.  See  Miinst.  Beitr.  II.  Num.  Ill :  termini  commu- 
nes. Arnsb.  Frkb.  27  :  conmiuni  marchia.  Dipl.  Ariuilf.  3  :  com- 
munis terminatio.  Fulda  Codex  o!»2  :  in  raarca  illarum  villarum. 
"When  a  dispute  arose  between  neighbors  in  regard  to  the  border 
land  between  their  respective  possessions,  and  the}-  could  not  come 
to  an  agreement,  the  matter  was  usually  settled  by  battle.  See 
Lex.  Baiw.  XI.  Cap.  v  :  quotiens  de  commarchanis  contentio  nasci- 
tur  .  .  .  The  passage  will  be  cited  in  full  in  Note  53.  The  nature 
of  the  co-marca  appears  clearly  in  some  of  the  Regensburg  rec- 
ords. See  Ricd.  Cod.  Dipl.  Ratisb.  XV,  XX.  See  also  Beyer 
Urkb.  108. 

Note  32.— Page  13. 

See  Cod.  S.  Galli  G31  :  conflnia  silvarum.  Cf.  Hist.  Frising. 
DCI.  jVIon.  Schlebdorf.  Dipl.  XIII.  Ried  Cod.  Dipl.  XXXVI : 
confinia  de  venatione  ct  piscatione.  Salem  Reg.  p.  320  :  per  con- 
finium  terrarura  ecclesiae.  Lauresham  Codex  DCCCCXLVI :  illam 
marcam  de  silva.  Trad.  Wiz.  LXIX:  marca  silvatica.  Cod.  S. 
Galli  57G  :  silvatieis  marchis.  Lauresham  Codex  XXXII :  walt- 
marca.  Fulda  Trad.  Cap.  G.  67  :  holzmarcbam.  So  in  Cap.  38. 
201.  Fulda  Codex  317:  in  ambitu  id  est  in  holzmarcu.  Giinther 
Cod.  Dipl.  13  :  confinium  nemorum.  Dipl.  Aruulf.  3  :  termina- 
tiones  silvue. 

Note  33.— Page  13. 

Sec  Kemble's  Codex  LXXXIII :  terminos  ab  antiquis  pos- 
scssoribus  constitntos.  Abingdon  Chron.  I.  p.  321  :  rus  sibi 
pertineus  snis  giratum  terminis.  Wirtemb.  Urkb.  CXLIII :  vcs- 
ter  minister  et  vestri  servi,  et  nos  ipsi  et  nostri  servi  de  ambos 
partes  finein  feccrnni  de  ilios  arbores.  Ricd  Cod.  Dipl.  CXIX  : 
circumeundo  pracdium  in  silva  communi  captivaverat.     "Wirtemb. 


150  EARLY  HISTORY  OF  LAND-HOLDING. 

Urkb.  CXIX :  coneaptum  logitiniisque  socuiiirum  adnotatioiiibus 
liuboo  cireuindatuui.  Cf.  Ilist.  Frisiiig.  DXL  :  Memmo  et  filius  ejus 
circuruduxerunt  missos  Episcopi  oinnem  rem.  So  in  DXXV'lll, 
DLXXXVII,  and  DCCCCLXXXI.  In  later  times  boundaries  were 
fixed  by  the  chief  men  and  the  common  people  assembled  together. 
Cf.  Formula  C'CCCll :  factus  est  convcntus  principum  et  vulgarium 
ad  dividendam  marcham  inter  fiseum  regis  et  populares  possessio- 
nes  in  illo  et  in  illo  pago.  We  have  a  case  in  illustration  in  Cod. 
Trad.  Lunaelac  LXII.  Compare  Lex.  Wisig.  X.  Tit.  I.  3  :  si 
plures  fucrint  in  divisione  consortes,  quod  a  multis  vel  a  melioribus 
juste  constitutumest  a  paucis  vel  deterioribus  non  convenit  aliquan- 
tcnus  iunnutari.  Then  Ibid.  I.  1  :  valeat  semcl  facta  divisio  justa, 
ut  nulla  in  postmodum  immutandi  admittatur  occasio.  Then  Ibid. 
I.  8  :  sed  quod  a  parentibus  vel  vicinis  divisura  est  posteritas  iramu- 
tare  non  tentet.  The  result  is  we  have,  Ibid.  Tit.  III.  1  :  antiquos 
terminos  et  limites  ;  and  Ibid.  3  :  signa  antiquitus  constituta.  Cf. 
Rothar  CCXL  et  seq.  Lex.  Baiw.  Tit.  XI :  de  terminis.  Also 
Lex  Eip.  LX.  5  :  quod  si  extra  marcham  in  sortem  alterius  fuerit 
inoressus  .  .  .  The  word  marcha  here  is  evidently  used  instead 
of  the  word  termination  which  occurs  in  the  preceding  passage, 
LX.  4 :  infra  terminationem.  Boundaries  were  designated  by 
marks  on  trees.  Lex.  Baiw.  XI.  Cap.  III.  2  :  in  arboribus  notas 
quas  decoreas  [decorticatas]  vocant.  So  in  Lex.  Wisig.  X.  Tit. 
III.  3.  Here  w^e  have  also  lapides  sculptos,  and  aggeres  terrae^ 
sive  areas.  Compare  Lisch.  Urkb.  I.  Num.  VII:  tres  lapides 
terre  allixos  .  .  .  arbores  cruce  notatas  .  .  .  per  cruce  signatas 
arbores.  But  upon  this  subject  the  reader  may  be  referred  to 
Grimm  Rechtsalt.  p.  541  et  seq. 

Note  34. —Page  13. 

The  boundaries  are  often  given.  The  student  will  find  a  great 
quantity  of  them  in  Kemble's  Codex.  Some  good  examples  are 
translated  into  English  in  Appendix  D.  of  the  Lib.  de  llyd.  For 
a  few  other  examples,  see  Diplomata  Merowig.  2.  Lauresham  X. 
Lisch  Urkb.  I.  Nos.  VII,  X,  XVI.  Orig.  Nassoic.  LXXVIII. 
The  student  will  easily  find  other  examples  if  he  wishes  them. 


NOTES  AND  REFERENCES.  151 

Note  35. —  Page  13. 

Lex  Baiw.  IX.  12:  ainplicandura  secundum  morem  antiquum. 
TVirtemb.  Urkb.  CVII :  quidquid  in  eonfinio  conprehensura  vel 
elaboratum  habuit.  Ried  Cod.  Dipl.  XXXIX :  quod  circumca- 
piebat.  Cod.  S.  Galli  643  :  silvulam  circa  ipsum  locum  sitam  ab 
aliorum  potestate  segregatam.  Hist.  Frising.  DCI :  quicquid 
ad  colendum  conpreheusum  habuissent.  DCXVIII :  quicquid 
deinceps  elaborare  potuissem.  Lauresham  Codex  CCCCX :  oc- 
cupatioucm  ad  decern  hubas  \_agri  pro  x  cultonbus  occupati']. 
DCXXVIII :  proprisum  quern  pater  meus  proprisit.  DCCCCXCVI : 
quicquid  in  ipsa  marca  laboratum  habeo.  Fulda  Cod.  501  :  elabo- 
ratum in  pago.  Trad.  Wiz.  LXXVI :  quicquid  ibidem  laboratum 
habeo  aut  inccps  laborare  potuero.  Cod.  S.  Galli  25  :  quod  ego 
adquesivi  vel  laboravi.  Lacomblet  Urkb.  27 :  quicquid  habuimus 
per  conprehensionem.  Cod.  S.  Galli  547  :  quicquid  in  illo  saltu 
conpreheusum  habuit.  Then  read  Lex  Baiw.  XVI.  2  :  ego  habeo 
testes  qui  hoc  sciunt,  quod  labores  de  isto  campo  semper  tuli,  ne- 
mine  contradicente  exartavi,  mundavi,  possedi  usque  liodic  .  .  . 


Note  36. —  Page  13. 

Vid.  Reg.  Prum.  Gloss.  1.  Mansi  irigenuiles  are  mentioned  in 
Lauresham  Cod.  MMMDCLXXV ;  in  Beyer  Urkb.  273,  274; 
Hist.  Trev.  CLII ;  and  elsewhere,  but  not  very  frequently.  Mansi 
lilales  or  ledilia  are  mentioned  in  Beyer  Urkb.  135  ;  Nachlesc,  23  ; 
Miinst.  Boitr.  II.  Num.  Ill :  litus  noster  habet  niansum  ;  XIX  ; 
XXX  :  mansi  et  dimidius  possess!  a  latis  Teutonieis  ;  Keg.  Westf. 
XXIV;  and  elsewhere.  They  are  not  very  common.  Mcmsi  sprviles 
are  mentioned  in  Lauresham  Cod.  CLXXXXIX  ;  Wirtemb.  Urkb. 
LXXXV :  mansos  xx  cum  servis  super  cos  habitantibus  \_agri  pro 
ii.K  cultoribus  occupati];  Beyer  Urkb.  58,  173,  273;  Indie.  Aiuion. 
VI ;  Brev.  Not.  Snlzb.  IV.  8  ;  and  elsewhere.  Tlie  mansi  which 
are  not  i)aiticularly  described  may  be  regarded  as  mansi  scrviles. 
When,  for  example,  we  read,  in  Formula  CXL :  mansum  domini- 
cum  et  alios  mansos  lx  ad  eum  pertinentibus,  we  may  assume 
that  the  latter  were  mansi  serviles.  Tlic  phrase  cnm  mancipiis  is 
frequently  introduced,  or  else  the  phrase  et  mancipia  super  comma- 


152  EARLY  HISTORY   OF   LAND-HOLDIXG. 

nentes.  The  mansi  are  regularl}-  mami  serviles.  If  they  are  mansi 
indominicati,  mansi  ingenuiles,  or  mansi  litalcs,  they  are  described  as 
such. 


Note  37. —  Page  13. 

Beyer  Urkb.  139  :  hobas  xcvii  inter  ingenuiles  et  serviles  [agri 
pro  XCVII  ciihorihus  occitpati\  Cod.  8.  Galli  57G  :  v  Iiobas  de 
terra  arabili ;  G43 :  hobas  legitime  dimensas.  Lauresham  Cod. 
MMMDCLXXXI:  hubas  plcnae  lidorum.  Hist.  Frisiiig.  I.  p. 
214 :  decern  houbas  censuales  quae  vulgariter  parscalhes-hoba 
dieuntur.  Num.  DLXII :  hobas  scrvorum  plenas  vi  \_agri  pro  vi 
cultorihus  occupati'].  DCCCXLIX :  de  terra  arabili  hobas  iiii. 
Alsat.  Dipl.  XCV:  hobas  octo  excepto  terra  dominicata.  Formula 
CCCLXVII :  hobis  possessis.  Fulda  Trad.  Cap.  3.  12 :  homines 
XII  cum  hubis  suis  \_agri  cum  cultorihus']  ;  Cap.  7.  24  :  terram  x  hu- 
barum  ;  Cap.  42.  305  :  hubam  unam  dominicale,  serviles  vero  hu- 
bas xiiii.  Osnabrk.  Gesch.  XXI :  septem  familias,  id  est  septera 
hobas  possessas  ac  censum  solventes.  Wirtcmb.  Urkb.  CXXXII : 
hobas  pleniter  emensas.  Lauresham  Cod.  XXXVII :  hubas  ser- 
viles vestitas  x.  These  examples  might  be  multiplied  indefi- 
nitely'. 

Note  38. —  Page  14. 

Instead  of  describing  the  meadow,  pasture,  and  forest  lands  in 
detail,  the  owner  used  this  formula.  It  occurs  in  almost  all  the 
documents  in  which  land  is  alienated  and  described.  It  may  be 
observed  that  severalties  of  meadow  and  forest  land  existed,  even 
in  the  time  of  Lex  Salica,  everywhere,  so  it  cannot  be  maintained 
that  the  fonnula  has  reference  to  rights  of  enjoyment  in  common 
lands,  rights  in  lands  belonging  to  the  communit}-.  In  many  cases, 
■without  doul)t,  it  is  used  to  describe  lands  held  in  common  (un- 
divided property,  or  property  held  in  undivided  shares)  ;  but  that 
is  another  matter.  That  severalties  of  meadow  and  forest  land 
existed  in  the  time  of  Lex  Salica  is  proved  hy  Lex  Sal.  XXVII. 
10  :  prato  alieno  ;  and  Ibid.  18  :  silva  aliena.  Compare  also  the 
Capitulary  of  A.  D.  Gl a :  sylvas  Ecclesiarum  aut  privatorum. 
Some  more  references  will  be  siven  in  other  connections. 


NOTES  AND   EEFERENCES.  153 

Note  39.  —  Page  14. 

Cod.  S.  Gain  674  :  quacsitis  et  inquirendis,  cultis  et  incultis. 
Ibid.  7G6  :  silvam  quantum  mihi  necesse  est  cxtirpanda.  Hist. 
Frising.  DCLVI :  terras  aratorias  extirpatas  sive  extirpandas,  res 
quesitas  et  inquesitas.  Wirtemb.  Urkb.  LXVIII :  cultis  et  incul- 
tis, sen  omne  quod  adquirere  debco,  vel  adquirens  augere  potuero. 
Ibid.  CX :  quesitis  vel  adhuc  inquisitis.  So  in  Reg.  Hist.  Westf. 
XXXVI.  Mon.  AYeihenstcpli.  p.  467  :  predium  quesitura  et  in- 
quisituin,  cultum  et  incultum  tradidit.  Ilenneb.  Urkb.  I :  quaesitis 
et  inquirendis,  omnibusque  appeudiciis  et  adjaccntiis.  Osnabrk. 
Gesch.  XXVI :  saltibus  cultis  et  incultis,  acquisitis  et  acquireudis. 
The   records  abound  in  examples. 

Note  40.  —  Page  14. 

Beyer  Urkb.  63.  Ried  Cod.  Dip].  CXIII  and  CXIX.  Compare 
Cod.  Moray.  XL VI :  proprietatem  in  omnibus  marchis.  So  in 
Fulda  Trad.  Cap.  6.  98  :  bona  sua  et  marca  silve.  See  also  Fulda 
Cod.  21  :  marcas  vel  fines.  They  are  alienated  as  belonging  to 
a  certain  estate.  Then  read  Beyer  Urkb.  108  :  in  comarca  ipsius 
ville  bifangum  unum  ubi  possunt  edificari  mansa  centum  necnon  in- 
saginari  porci  mille.  The  word  bifang  is  used  to  describe  appro- 
priations. The  Latin  equivalent  is  captura  or  novalis.  Cf.  Beyer 
465  (1))  :  terram  novalium  circumjacentium  ad  xx  raansos  vel 
amplius.  Ibid.  513  :  novalia  de  nemore.  Other  examples  will  be 
given  in  other  connections.  The  freemen  were  constantly  extend- 
ing their  possessions  by  appropriating  unoccupied  lands.  No  fact 
is  more  fully  illustrated  in  the  records  than  this. 

Note  41.  —  Page  14. 

Greg.  Tiiron.  VI,  20.  See  tlie  passage  cited  in  Note  2.  Cliro- 
dinus  founded  a  great  many  villages,  and  put  tenants  into  them  to 
cultivate  the  land.  Tiie  case  of  Clirodinus  was  not  an  isohited 
case.  All  the  rich  lords  were  founding  villages  and  putliiig  tlicir 
dependants  and  slaves  into  them.  It  was  very  profitable  ;  for  the 
tenants  paid  rents  and  dues  for  their  lands.  The  more  tenants  a 
man  had,  the  richer  he  became.    Captives  in  war  were  divided,  and 


154  EARLY  HISTORY  OF  LAND-HOLDING. 

then  distributed  in  tenant  colonics  over  tlie  land.  Tlie  owners 
of  the  colonists  were  the  owners  of  the  lands  which  the>-  cultivated. 
In  some  cases  man}'  villages  were  under  one  lord.  In  Beyer  Urkb. 
19,  Egid  gives  to  the  Abbey  Priim  thirty  or  more  villages:  cum 
omni  integritate,  tam  terris,  domibus,  edificiis,  accolabus,  nianci- 
piis,  vineis,  silvis,  campis,  pratis,  pascuis,  aquis  aquarumque 
decursibus,  farinariis,  cum  pastoribus,  gregis  pecundum  utriusque 
sexus,  mobilibus  et  inmobilibus.  These  villages  were  probabh' 
founded  b}-  Egid,  or  by  his  ancestors.  Of  course  very  few  persons 
in  private  life  were  so  wealthy  as  Egid  ;  still  tlie  number  of  persons 
who  owned  two  or  three  villages  was  large,  as  may  be  seen  by  an}' 
one  who  will  read  through  some  of  the  collections  of  earl}'  docu- 
ments. The  villages  are  often  described,  as  in  Hist.  Trev.  XXIX: 
villa  nuncnpata  Waderlo  ...  id  est  tarn  terras  aratorias,  campis, 
pratis,  pascuis,  aquis  aquarumque  decursibus,  mobilibus  et  immo- 
bilibus,  et  silvam  ad  cundem  locum  pei'tinentem,  et  viii  casatas 
cum  hominibus  et  mancipiis  et  cum  omni  peculio  suo.  Compare 
Formula  CLIX :  aliquam  rem  meam,  in  pago  illo  ;  hoc  est  mansos 
tantos  cum  hominibus  ibidem  commanentibus  vel  aspicientibus, 
cum  terris  arabilibus,  silvis,  campis,  pratis,  pascuis,  vel  quicquid  in 
ipso  loco  mea  fuit  possessio  vel  dominatio.  This  is  a  common  for- 
mula. (T.  CLXXII,  CC,  CCXXVIII,  CCLI,  CCC.  We  have  a 
slightly  different  formula  in  CCXII :  villam  juris  mei  nuncupatara 
illam,  sitam  in  pago  illo  cum  terris  aedificiis,  accolabus,  mancipiis, 
libertis,  vineis,  silvis,  pratis,  pascuis,  aquis,  aquarumve  decursibus, 
mobilibus  et  inmobilibus  ;  cum  omnibus  appendiciis  suisque  adiecen- 
tiis,  sicut  a  me  prescnti  tempore  videtur  esse  possessum  ;  totum  et 
ad  integrum.  CT.  the  passage  cited  above  from  Hist.  Trev.  We 
see,  in  Formula  CXXIV,  that  it  was  assumed  that  an  inheritance 
consisted  of  villages  of  this  character.  The  heirs  are  supposed  to 
take  one  or  two  apiece  :  Accepit  itaque  illc  villas  nuncupatas  illas, 
sitas  ibi,  cum  mancipia  tanta  ilia.  Similiter  et  ille  accepit  e  contra 
[contra  germanum  suum]  in  conpensatione  alias  villas,  nuncu- 
pantes  illas,  sitas  ibi,  cum  mancipia  tanta  ilia.  Property  consisted 
quite  regularly  of  villages  of  serfs,  or  portions  of  villages,  for 
when  a  man  died,  and  the  "sum  of  his  villages  was  not  a  multii)le 
of  the  number  of  his  heirs,  one  or  more  of  the  villages  were  divided. 
Also  when  tlie  villages  were  of  unequal  size  they  were  usually 
divided.     Then  we  have,  instead  of  whole  villages,  shares  or  por- 


NOTES  AND  REFERENCES.  155 

tions  of  villages:  portiones  in  villis.  So  iu  Formula  CC'XIII. 
The  villa  was  regularly  a  village  of  serfs,  that  is  to  say,  a  colony  of 
dependauts  or  slaves.  It  is  evident  from  the  records  that  the  free- 
man was  supposed  to  own  one  or  more  such  colonies.  See  Lex 
Kip.  LX  :  si  quis  villam  aut  vineam,  vol  quamlibct  possessiunculam 
ab  alio  comparavit  ,  .  .  See  also  Lex  Baiw.  I.  Cap.  1  :  et  quid- 
quid  donaverit,  villas,  terram,  mancipia,  vel  aliquam  pceuniam. 
These  villae  of  the  free-lords  appear  to  be  the  vici  locati  of  Germ. 
16.  See  Note  2,  and  the  citations  there  given.  It  will  be  remem- 
bered how  in  India,  among  the  Hindus,  and  in  Russia,  among  the 
vSlaves,  landed  property  has  consisted  (luite  regularl}'  of  village 
communities,  —  villages  occupied  by  tenants  or  serfs,  and  owned 
b}'  the  members  of  an  aristocracy'.  That  this  was  the  case  iu 
Western  Europe  during  the  INIiddle  Ages  is  well  known.  It  is  our 
object  to  show  that  it  was  the  case  also  in  the  earliest  period  of 
recorded  history,  —  even  in  the  time  of  Tacitus.  Read  once  more 
Germ.  IG,  2o,  and  26. 

Note  42.  — Page  14. 

Athelstan  II  (Thorpe  I.  p.  217)  :  si  tunc  sit  aliquis  qui  tot 
homines  lial)cat  quod  non  sulliciat  omncs  custodirc,  pracponat  sibi 
singulis  villis  pracpositum  unum,  qui  crcdibilis  sitei,  et  qui  concrodat 
hominibus.  The  villae  here  are  the  vici  locati  of  Germ.  16.  Why 
not?  The  praepositi  are  often  described  as  villici,  i.  e.  head-men 
of  villages.  See  Lacomblet  Urkb.  186:  si  villicus  vel  de  edKiciis 
vel  de  agricultura  plaeituni  ibidem  habuerit  .  .  .  Cf.  Beyer  Urkb. 
343.  The  duties  of  villici  are  described  in  Capitularia  A.  D.  813,  II. 
19.  In  Cap.  de  Villis  the  villici  are  called 7 wc/m-s,  and  their  duties 
are  clearly  set  forth.  Then  read  Alsat.  Dipl.  XXVI II:  i[)sos  qui 
dicuntur  schoffele  aut  villici,  aut  mansorum  possessores  qui  dicun- 
tur  luibere.  Lex  Burg.  L.  3  :  actor  patrimonii  nostri,  vel  cujusli- 
bet  alterius.  He  is  sometimes  called  nuijor^  as  in  Cod.  S.  Galli  13. 
Cf.  Greg.  Turon.  IX.  36.  Rothar  CCLXXVI :  gastaldius  aut 
actor.  Sec  also  CCCLXXVII :  sculdasium  aut  actorcm.  Sec 
Wirtenil).  Urkb.  VIII  :  magister  triliutariorum.  Stenzel  LTrkb. 
XLVIII  :  schultotus.  Tliis  is  a  very  interesting  document,  and 
others  might  l)c  cited  from  the  same  collection.  There  arc  otlier 
passages    l)caring   \\[)o\\    the    position    and    duties   of  the   srliu/te- 


156  EARLY  HISTORY  OF  LAND-HOLDING. 

tiis  (Schuld/ieiss)  in  Cod.  Dipl.  Silcs.  IV.  See  Index.  Lastly,  read 
what  Fleta  says  (Lib.  II)  about  tlae  offlccrs  of  tlie  manor,  and 
tlieir  duties. 

Note  43.  —  Page  14. 

The  evidence  of  this  has  been  already  given.  See  Notes  2,  41, 
42.  Property  consisted  regularh-  of  lands  occupied  and  cultivated 
by  serfs,  and  as  a  rule  the  serfs  were  distributed  in  villages.  We 
find  that  this  was  the  case  among  the  Germans  generally  at  the 
time  of  the  Folk-Laws,  and  the  inference  is  that  it  was  the  case 
also  in  the  time  of  Tacitus  and  Ctesar.  It  will  be  urged  that  in 
the  time  of  Tacitus  and  Ciiesar  the  life  of  the  people  was  unsettled, 
nomadic  ;  that  the  modes  of  life  must  have  changed  in  man}'  re- 
spects as  soon  as  the  migrations  were  over  and  settlements  were 
permanent.  This  is  true  without  doubt.  The  objection  does  not, 
however,  touch  our  argument.  Dependants  and  slaves  were  accu- 
mulated quite  as  easily  during  the  migratory-  life  as  during  that 
which  was  settled,  — more  easily,  perhaps.  Then  whenever  settle- 
ments were  made  the  dependants  and  slaves  were  distributed  in 
villages.  The  dwelling-places  of  the  free-lords  were  surrounded  by 
these  villages.  This  was  the  case  whether  settlements  were  perma- 
nent or  merely  temporary.  In  other  words,  the  conditions  of  the 
migratory  life  were  not  inconsistent  with  the  growth  and  develop- 
ment of  the  manorial  S3'stem.  Perhaps,  indeed,  they  were  favor- 
able to  it.  If  this  was  not  the  case,  how  are  we  to  explain  the  fact, 
that  immediately  after  the  migrations  we  have  a  fully  developed 
manorial  system,  —  free-lords  dwelling  apart  from  one  another, 
with  bands  of  dependants  and  slaves  settled  in  villages  round 
about  them,  rendering  dues  and  services  to  them,  or  to  their  agents, 
villici  or  pr<spositi?  It  must  be  that  this  system  was,  to  a  certain 
extent  at  least,  developed  during  the  period  of  migrations. 

Note  44.  —  Page  15. 

Caesar  IV.  3  :  Publice  maximam  putant  esse  landem,  quam  latis- 
sime  a  snis  finibus  vacare  agros  :  hac  re  significari,  magnum  nu- 
merum  civitatium  suam  vim  sustinere  non  posse.  Itaque  una  ex 
parte  a  Suevis  circiter  milia  passum  dc  agri  vacare  dicuntur.     So 


NOTES  AND  EEFERENCES.  157 

in  VI.  23  :  Civitatibus  maxima  laus  est,  quam  latissimas  circum 
se  vastatis  finibus  solitiulines  habere.  Hoc  propriiim  virtutis  exisli- 
mant,  expulsos  agris  fiuitimos  ceclere,  neque  qucmqiuim  propc 
audere  consistere :  simul  hoc  se  fore  tutiores  arbitrautur,  repeiiti- 
nae  incursionis  timore  subhito. 

Th(!  object  of  the  state  iu  extcuding  its  border  land  in  eveiy 
direction  as  far  as  possible  was  not  merely*  to  displa}'  its  power 
and  soenre  itself  against  sudden  attack.  The  chief  object  was  to 
secure  a  territory  upon  which  the  people  could  increase  and  spread, 
and  have  as  much  land  as  the}-  needed  for  their  agriculture  and 
stock-farming.  The  object  was  to  make  room  for  the  herds  of 
slaves  and  cattle.  B3'  these  means  states  grew  rich  and  powerful ; 
b}'  these  means  they  were  able  to  command  the  supplies  which 
were  needed  in  time  of  war.  The  more  plentiful  the  supplies,  the 
longer  they  were  able  to  fight  their  enemies,  the  surer  they  were 
to  triumph  over  them  at  last.  The  Germans  were  not  slow  to 
learn  that  success  in  war,  in  the  long  run,  depends  upon  economic 
conditions  at  home,  —  upon  the  extent  of  lands,  the  number  of  cul- 
tivators, and  the  increase  and  supply  of  live-stock.  "We  have  seen 
(Note  5)  how,  in  order  to  keep  on  fighting,  the  people  took  turns 
in  going  to  war  and  in  staying  at  home  to  look  after  their  estates. 

Note  45.  —  Page  15. 

See  lists  of  local  names  in  the  Altdeutsches  Namenbuch,  by  Dr. 
Ernst  Forstemann,  Zweiter  Band  :  Ortsnamen  (2d  edition,  Nord- 
hausen,  1872,  4°).  See  also  Die  Deutschen  Ortsnamen,  bj'the  same 
author  (Nordhausen,  18G3,  8°).  A  very  complete  Bibliography 
is  given  in  Section  II  (p.  9).  See  also  Dr.  Wilhelm  Arnold's 
valuable  treatise  entitled  :  Ansiedelungen  und  "NVanderungcn  Dtiit- 
scher  Stamme,  zumeist  nach  Ilessischen  Ortsnamen.  Long  lists 
of  local  names  are  given.  Most  of  the  collections  of  earl}'  records 
have  indices  of  local  names.  It  is  easy  to  glance  over  them.  It 
is  sur[)rising  to  see  how  much  of  the  earl}'  life  of  the  people  is  con- 
tained in  them.  Isaac  Taylor's  Words  and  Places  (2d  edition, 
London,  18G5,  8°)  is  deservedly  well  known. 


158  EARLY   niSTORY   OF  LAXD-UOLDIXG. 

Note  4G.  —  Page  16. 

Fukla  Trad.  Cap.  38.  2G5.  Ibid.  Cap.  5.  loO.  Cod.  S.  Galli 
239.  See  also  Fulda  Trad.  Cap.  G.  G  :  uuuin  Iduanc  sui  nominis, 
Adoltesbiuanc.  The  hiuanc  was  an  api)io[)riati()n  of  lai)d.  Cap. 
38.  1G8:  capturam  id  est  biuanc.  Then  read  Fulda  Cod.  11.0: 
quiequid  in  Perahtleibeshusom  germauus  mens  Perahtleib  mauu 
potestativa  mihi  tradiderat.  Also  Mon.  Schcftlar.  p.  3G7  :  in  villa 
nuncupata  Reginprehteshusen,  quiequid  genitores  illorum  AVerin- 
preht  et  Reginpreht  relinquerunt.  A  great  man}'  personal  names 
of  this  type  oeeur.  They  may  be  easily  found  by  reference  to  the 
indices  of  local  names  appended  to  the  different  collections  of  early 
documents.  See  for  example  the  Orts-Register  of  the  Cod.  S. 
Galli.  Twelve  or  fifteen  personal  names  of  places  occur  on  the 
first  half-page  (Bd.  II.  p.  475), — Adaghiliniswillare,  Adaldrudo- 
wilare,  Adalgoz^eshusa,  Adalholtcshoba,  Adalrammiswilare,  and 
so  on.  In  man}-  cases  corresponding  names  may  be  found  in  the 
Personen-Register.  The  name  Adalcozzus,  or  Adalgoz,  occurs ; 
also  the  name  Adalramnus  or  Adalhram.  An  enormous  proportion 
of  the  early  names  of  places  contain  the  names  of  persons.  This 
is  evidence,  of  course,  in  support  of  the  Eiiizelhof -system. 

Note  47. — Page  1G. 

Regarding  houses,  farm-buildings,  sheds,  yards,  enclosed  gar- 
dens, and  so  on,  the  student  may  read  Germ.  16.  Then  Lex  Sal. 
XVI,  XXXIV,  XXVII.  6,  7,  and  Novella  73  (Merkel,  p.  62).  Cf. 
Germ.  26.  Gardens  and  orchards  were  planted  in  the  time  of  Lex 
Salica,  and  afterwards  (see  espec.  the  Capit.  de  Vil.)  ;  but  not  at  all 
in  the  time  of  Tacitus.  Various  farm-buildings  are  mentioned  in 
Lex  Alam.  LXXXI,  and  in  Lex  Baiw.  IX,  X.  See  also  Alsat. 
Dipl.  XV,  LXXXVII.  Formulae  CCXXXVIII,  CCCLXV.  Cod. 
S.  Galli,  373.  Mohr.  Cod.  Dipl.  9.  Giinthcr  Cod.  Dipl.  49  :  una 
curte  cum  lapidea  domo.  The  date  of  this  record  is  1017-1047. 
Stone  houses  were  probal)ly  rare,  even  at  that  date.  Lastly,  read 
Ilenncb.  Urkb.  CXL :  curiam  nostram,  dictam  fronhof. 


NOTES  AXD  REFERENCES.  150 

Note  48.  — Page  16. 

The  farmstead  is  quite  commonly  described  by  the  Latin  word 
Curtis,  which  means  an  enclosed  court  or  yard.  The  Teutonic  equiv- 
alent is  tun.  It  is  used  to  describe  an  enclosure.  It  is  the  Dutch 
tuin,  a  fence  or  hedge,  the  Old  High  German  zun,  the  German 
zaun.  Cf.  Lex  Baiw.  IX.  10,  11,  and  Rothar  CCXC.  The  primi- 
tive farmstead  appears  to  have  been  a  courtyard  surrounded  by 
buildings  of  various  kinds,  dwelling-houses,  barns,  sheds,  and  so 
on.  The  type  is  probably  preserved  in  existing  farmhouses  in  the 
Ehineland  of  the  Franks.  See  a  plan  in  Ileinrich  Otto's  Geschichte 
der  Romanischeu  Baukunst  in  Deutschland  (Leipzig,  1S74,  4^,  p. 
45).  We  find  in  Lex  Sal.  Xov.  285  (Merkel,  p.  74)  reference  to 
the  interior  of  the  courtyard  and  apple  trees  growing  there  :  poma- 
rio  domestico  intus  curte. 

The  curtis  is  referred  to  very  frequently  in  the  Folk-Laws  and 
documents.  See  also  Capit.  de  Vil.  XLI :  nt  aedificia  intra  curtes 
nostras,  vel  sepes  in  circuitu,  bene  sint  custoditae.  We  read  in  the 
Brev.  Rer.  Fisc.  that  the  king's  villa  Asnapio  consisted  of  a  sola 
built  of  stone,  and  seventeen  other  houses  built  of  wood,  all  enclosed 
in  a  courtyard  ;  «'«/ra  curtem.  Further  on  we  read  of  a  curtem 
sepe  circuindatam,  of  a  curtem  sepe  bene  mumtam,  of  a  curticulam 
{nterclusam,  cum  tunimo  sf.renue  mumtam,  and  of  a  curtem  tnnimo 
circnmdatam  et  desuper  sepe  munitam.  Then  we  have  the  curtem 
viuro  circumdatam  cum  porta  ex  lapide  facta.  We  have  here  the 
germ  of  the  feudal  castle.  The  Gaelic  word  dun,  which  is  the  cog- 
nate of  tun,  means  a  fortress.  The  Welsh  word  din  means  a  hill- 
fort.  The  arrangement  of  the  feudal  castle,  a  courtyard  enclosed 
by  walls  and  buildings,  is  without  doubt  derived  from  the  arrange- 
ment of  the  primitive  farmstead. 

Note  49.  —  Page  16. 

It  must  be  romomborod  that  the  marl\  at  this  time,  was  simply 
the  border  land  which  separated  one  settlement  from  anntJKn'. 
Wirtemb.  Urkb.  LX  :  coiKinesitum  nieuni  cum  niarca  sua.  I'nida 
Trad.  Cap.  G.  98  :  bona  sua  et  marca  silve.  Lex  Rip.  LX.  5  : 
extra  marcham  in  sortem  altorius.  Fulda  Codex  21  :  mnrcns  vel 
fines.       Ibid.   ?>\1  :    in   ainl)itu  id    est   in    holzniarcu.      Lauresliam 


160  EARLY  HISTORY  OF  LAND-HOLDING. 

Codex  VI :  villa  cum  omnibus  adjacentiis  vol  appenditiis  cum 
omnibus  termiuis  ct  marchis.  Ibid.  XII :  in  fine  vel  marcha. 
DCCCCXLVl :  maream  dc  silva  ad  illos  mansos  pertinentem. 
Codex  S.  Gain  o76  :  silvaticis  marchis  ad  hobas  pertinentibus. 
The  mark  was  at  first  the  enclosure  of  uncultivated  land.  Then 
the  word  was  used  to  describe  the  lands  within  this  enclosure. 
The  villa  was  described  by  the  word  marca.  Trad.  Wiz.  XXIV : 
in  villa  vel  in  marca.  The  words  villa  and  marca  interchange 
meanings.  Fulda  Trad.  Cap.  38.  201  :  tradidit  holzmarcham  ad 
X  hubas.  Read  also  Fulda  Cod.  84  :  locum  nuncupatum  Biber- 
bah,  cujus  marca  sunt  xxx  hube.  This  was  a  mark  of  land  con- 
taining thirt}'  arable  lots.  "We  should  describe  the  tenants  of  these 
lots  as  a  Markgenossenschaft.  The  lord  of  the  mark  was  Warinus. 
If,  instead  of  giving  his  mark  to  Saint  Boniface  of  Fulda,  he  had 
kept  it,  it  would  have  passed  to  his  descendants,  to  be  divided  and 
subdivided  among  them.  As  they  multiplied  upon  the  mark,  we 
should  have  had  another  Markgenossenschaft  coming  into  existence, 
a  Markgenossenschaft  of  landlords,  as  distinguished  from  the  Mark- 
genossenschaft of  the  tenants.  There  were  two  kinds  of  Markgenos- 
senschaft, one  the  association  of  tenants,  the  other  the  association 
of  landlords.  They  must  be  very  carefully  distinguished  the  one 
from  the  other. 

Wc  hear  of  common  marks  in  the  earliest  time.  They  were 
boundaries  common  to  the  estattss  of  two  or  more  persons.  The 
free-lords  whose  estates  touched  one  another  were  called  associate 
mark-men,  comarcani.  Vid.  Lex  Baiw.  XI.  5  :  quotiens  de  com- 
marchanis  contentis  nascitur,  ubi  evidentia  signa  non  apparent  in 
arboribus,  aut  in  montibus  nee  in  fluminibus  .  .  .  We  shall  give 
the  whole  passage  in  Xote  53.  Cf.  the  passage  cited  above  from 
Lex.  Rip.  The  tenants  of  the  hubae  in  the  passage  cited  from 
Fulda  Codex  would  be  called  comarcani.  They  lived  together 
within  a  common  boundary  :  and  if  Warinus  had  left  these  hubae 
to  his  descendants,  they  too  would  have  been  called  comarcani. 
Again,  it  often  happened  that  a  group  of  free-lords  settled  in  iso- 
lated ftirms  or  villas,  which,  inasmuch  as  they  were  isolated  from 
other  settlements,  hnd  a  common  mark.  These  lords  would  be 
described  as  comarcani,  land-owners  witliin  a  common  mark,  con- 
sorf.es  in  marca.  Accordingly  we  have  marks  in  which  there  are 
several  villas.     See  Fulda  Codex  392  :  in  villa  Urdorpf  et  Chizicha 


NOTES  AND  REFERENCES.  IGl 

et  Adalfridcsluison  ot  in  iiuirca  illurum  villarum.  So  also  in  Ibid. 
429.  The  landowners  in  these  villas  would  be  called  consortes  in 
marca  or  comarcani.  The  same  terms  might  be  used  to  describe 
their  dependants  and  slaves.  The  existence  of  two  classes  of 
vicini  is  referred  to  in  the  first  Capitulary  added  to  Lex  Salica. 
Sec  Cap.  9  (Behrend,  p.  91)  :  viciniilli  .  .  .  qui  meliores  sunt  .  .  . 
minoflidis  vero.  Cf.  Capitula  Add.  ad  Leg.  Alam.  22,  39.  All  this 
Avill  be  elucidated  more  full}',  as  we  go  on  in  our  argument.  The 
point  to  be  considered  here  is,  that  the  mark  was  in  the  early  time 
simply  a  Ijoundar}-  of  uncultivated  land  separating  one  settlement 
from  another.  The  comarcani  were  those  persons  who  held  this 
boundary  in  common.  They  were  neighbors,  vicini.  The  co- 
marcani were  separated  one  from  another  by  marks,  and  groups 
of  comarcani  were  separated  from  one  another  by  marks.  Wc  have 
the  villa  cum  marca  and  the  marca  villarum. 

Note  50.  —  Page  17. 

We  hear  a  great  deal  of  talk  about  liouse  communities  in  which 
the  holding  of  property'  was  communistic.  The  holding  of  prop- 
erty in  the  Teutonic  house  communities  was  certainl}-  not  commu- 
nistic. The  head  of  the  household  was  the  lord  of  the  land,  and 
owner  of  all  the  live-stock  and  slaves  set  out  upon  it.  When  the 
head  of  the  household  died,  his  sons  stepped  into  his  place ;  when 
the  sons  died,  the  grandsons  stepped  into  it ;  so  it  often  happened 
that  several  persons  were  lords  of  the  land  and  owners  of  the  stock 
and  slaves  set  out  upon  it.  But  we  must  not  assume  that  the  hold- 
ing of  the  propert}'  was  communistic.  The  evidence  goes  to  show, 
as  we  shall  see  as  we  go  on  in  our  argument,  that,  although  there 
was  unity  of  possession,  there  was  diversity  of  title.  The  title 
vested  in  the  founder  of  the  community  was  distributed  among  his 
descendants  from  generation  to  generation  :  so  that  each  one  could, 
if  he  pleased,  appropriate  some  of  the  land,  and  some  of  the  stock 
and  slaves.  When  the  individual  was  thought  to  have  taken  more 
than  his  share,  a  systematic  division  of  the  propert}-  was  called  for, 
a  division  in  equal  shares,  an  exaeqnatio.  Then  the  unity  of  posses- 
sion was  broken  up,  and  instead  of  one  household  we  have  several 
or  many.  The  heads  of  these  new  households  stood  quite  inde- 
pendent one  of  another,  like  their  progenitor,  the  founder  of  the 

11 


162  EARLY   HISTORY   OF  LAND-HOLDIXa. 

family  and  first  lord  of  the  land.  The  new  households  became 
house  communities  in  the  same  yvsiy.  The  heirs  increased  in  each 
one.  They  held  their  lands,  stock,  and  slaves  in  common  for  a 
while  ;  but  -with  this  unity  of  possession  there  was  diversity  of  title, 
which  led  after  a  while  to  a  division  of  the  property  among  the 
heirs.  The  property  being  divided,  the  heirs  distributed  them- 
selves in  new  households.  The  process  went  on  indefinitely.  We 
do  not  den}'  that  there  were  house  communities  among  the  early 
Germans  ;  but  we  do  not  beheve  that  their  constitution  was  in  any 
respect  communistic.  The  evidence  goes  to  show  that  the  principle 
of  individual  property  was  dominant  everywhere. 

Sometimes  one  son  took  the  household,  the  stock,  slaves,  and 
land, — the  boldest  and  best  son,  or  the  eldest.  Cf.  Germ.  32: 
inter  familiam  et  penates  et  jura  successionum  cqui  traduntur : 
excipit  filius,  non  ut  cetera,  maximus  natu,  sed  prout  ferox  bello  et 
melior.  This  is  said  of  the  Tencteri.  In  such  cases  the  disinher- 
ited sons  were  maintained  as  dependants,  or  went  off  to  seek  their 
fortunes  in  other  places.  When  they  remained  at  home,  they  were 
vassals  in  the  house  of  their  father,  vassals  of  their  brother.  In 
this  condition  of  things  we  have  the  germ  of  a  feudal  sj'stem.  All 
this,  however,  will  be  brought  out  more  clearly  as  we  go  on  through 
our  argument. 

Note  51.  — Page  18. 

Caesar  VI.  22  :  Agriculturae  non  student ;  majorquc  pars  victus 
eorum  in  lacte,  caseo,  carne  consistit :  neque  quisquam  agri  modum 
certum  ant  fines  habet  proprios  ;  sed  magistratus  ac  principes  in 
annos  singulos  gcntibus  cognationibusque  hominum,  qui  una  coie- 
runt,  quantum  et  quo  loco  visum  est  agri  attribuunt,  atque  anno  post 
alio  transire  cogunt.  Ejus  rei  multas  affcrunt  causas,  ne  assidua 
consuetudine  capti  studium  belli  gerendi  agricultura  commutent ; 
ne  latos  fines  parare  studeant,  potentioresque  humiliorcs  posses- 
sionibus  expellant,  ne  accuratius  ad  frigora  atque  aestus  vitandos 
aedificent ;  ne  qua  oriatur  pecuniae  cupiditas,  qua  ex  re  factiones 
dissensionesque  nascuntur :  ut  animi  aequitate  plebcm  contineant, 
cum  suas  quisque  opes  cum  potcntissimis  aequari  vidcat. 


NOTES  AND   REFERENCES.  1G3 

Note  52.  —  Page  19. 

Tacitus  Germ.  25  (given  in  Note  2).  Ibid.  26  (given  in 
Note  9). 

Note  53.  —Page  20. 

Lex  Baiw.  X^^.  Cap.  I.  1 :  Si  quis  homo  pratum  vel  agrum  vel 
exartum  alterius  contra  legem  malo  ordiue  invaserit,  et  dicit  suum 
esse,  propter  praesumptionem,  cum  sex  solidis  compouat,  et  exeat. 
2.  Si  autem  suum  voluerit  ^indicare  ilium  agrum  aut  pratum  vel 
exartum,  vel  unde  ilia  contentio  est,  taliter  viudicet.  Juret  cum 
sex  sacramentalibus,  et  dicat :  Ego  in  tua  opera  priore  non  invasi 
contra  legem,  nee  cum  sex  solidis  componcre  debeo,  nee  exire, 
quia  mea  opera  et  labor  prior  hie  est  quam  tuus.  Tunc  dicat  ille 
qui  quaerit :  Ego  habeo  testes  qui  hoc  sciunt,  quod  labores  de  isto 
campo  semper  ego  tuli,  nemiue  contradicente  exartavi,  muudavi, 
posscdi  usque  hodie,  et  pater  mens  rcliquit  mihi  in  possessione  sua. 
Ille  homo  qui  hoc  testificare  voluerit,  commarchanus  eius  debet 
esse,  et  debet  habere  sex  solidorum  pecuniam  et  similem  agrum. 
Tunc  ille  testis  iuret  taliter :  Quia  ego  hoc  meis  auribus  audivi  et 
oculis  meis  vidi,  quod  istius  hominis  prior  opera  fuit  in  isto  agro 
quum  tua,  et  labores  fructuum  ille  tulit.  Post  sacramentum  reddat 
agrum.  Tunc  ille  defensor,  si  sperat  quod  institia  de  illo  agro  suo 
fuisset,  et  hoc  in  praesenti  populo  fiat,  ne  per  invidiam  aliquis  pe- 
reat,  dicat  ad  ilium  testem  :  Mendacium  iurasti  contra  me.  Sponde 
mihi  pugnam  duorum,  et  manifestet  Dens  si  mendacium  an  verita- 
tem  iurasti  contra  me  ;  et  componere  debes  cum  duodecim  solidis, 
et  illam  terram  reddere  quam  mendacitur  abstulisti.  Si  vicerit  ille 
qui  quaerit,  compouat  cum  duodecim  solidis,  et  illam  terram  reddat. 
Et  si  illam  terram  non  potuerit  donare,  donet  aliam  in  proximo 
quantum  iactus  est  de  sccuri  saiga  volente  :  Et  si  in  proximo  non 
liabet,  nee  comparare  potest,  iuret  secundum  pretium  agri  ut 
ipsum  agrum  cum  pretio  valente  nee  cum  duplo  nee  cum  triplo 
conquirere  non  potuisset,  et  donet  ubi  habet :  et  ipsum  agrum  qui 
donet  iuret  quod  talis  sit  qualis  suus  fuerat. 

Lex  Baiw.  XVII.  Cap.  II :  De  his  qui  propriam  alodem  vendunt 
vel  quascunque  res,  et  ab  emptore  alter  ab.strahere  voluerit  et  sibi 
sociare  in  patrimoniuni,  tuuc  dicat  em[)tor  ad  vcnditoreui :  Trrrani, 


164  EAELY  HISTORY  OF  LAND-HOLDING. 

aut  quaocunque  fiicrit  res,  abstrahcrc  niihi  vult  vicinus  mens,  dicens 
quod  sua  fuerit.  Et  istc  resi)ondet :  Ego  quod  tibi  donavi,  cum 
lege  integra  et  verbis  testilicatione  finnare  volo.  Super  septem 
noctes  fiat  constitutum.  Si  dicit,  cum  utrisque  utraeque  partes 
conveniunt :  Cur  invadere  conaris  tcrritorium  quod  ego  iustc  iure 
bercditatis  donavi.  lUc  alius  contra  :  Cur  meum  donare  dcbuisti, 
quod  antecessores  mei  antea  tcnuerunt  ?  Iste  vero  dicit :  Non  ita, 
scd  mei  antecessores  tenuerunt,  et  niilii  in  alodem  relinquerunt,  et 
vestita  est  illius  manus  cui  tradidi,  et  firniare  volo  cum  lege.  Si 
statim  voluerit,  liberam  habeat  potestatem.  Sin  autem,  postea 
super  tres  dies  aut  quinquc  aut  certe  septem  ea  ratione  firmet.  Per 
quatuor  angulos  campi,  aut  designatis  terminis,  per  baec  verba  tollat 
de  ipsa  terra  vel  aratrum  circumducat,  vel  de  lierbis,  aut  ramis, 
silva  si  fuerit :  Ego  tibi  tradidi,  et  legitime  firmabo  per  ternas  vices. 
Dicat  haec  verba,  et  cum  dextera  manu  tradat ;  cum  sinistra  vero 
porrigat  wadium  huic  qui  de  ipsa  terra  eum  mallat,  per  haec  verba : 
Ecce  wadium  tibi  do  quod  terram  tuam  alteri  non  do,  legem  faci- 
endo.  Tunc  ille  alter  suscipiat  wadium  et  donet  ilium  vicessoribus 
istius  ad  legem  faciendam.  Si  causa  fuerit  inter  illos  pugnae,  dicat 
ille  qui  wadium  suscepit :  Iniuste  tcrritorium  meum  alteri  firmasti, 
id  est,  farsvirotos.  Ipsum  milii  debes  reddere,  et  cum  duodecira 
solidis  componcre.  Tunc  spondeant  pugnam  duorum,  et  ad  Dei 
pertineat  indicium.  Sin  autem,  cum  sacramento  se  defendat,  id 
est,  cum  duodecim,  quod  suam  terram  iniuste  non  firmaret  alteri, 
nee  suae  ditioni  restituere  deberet,  nee  cum  duodecim  solidis  com- 
poncre. 

Lex  Baiw.  XI.  Cap.  V :  Quotiens  de  commarcbanis  contentio 
nascitur,  ubi  evidentia  signa  non  ai)parent  in  arl3oril)us,  aut  in 
montibus  nee  in  flnniinibus,  et  istc  dicit :  llucusque  antecessores 
mei  tenuerunt,  et  in  alodem  mihi  rcliquerunt,  et  ostendit  secundum 
proprium  arbitrium  locum  ;  alter  vero  nihilominus  in  istius  partem 
ingreditur,  alium  ostendit  locum,  secundum  prioris  verba  suum  et 
suorum  antecessorum  semper  fuisse  usque  in  praesens  asserit. 
Et  si  alia  probatio  nusquam  inveniri  dinoscitur,  nee  utriusque  inva- 
sionem  compensare  voluerint,  tunc  spondeant  invicem  wehadinc 
quod  dicimus,  et  in  campiones  non  sortiantur,  scd  cui  Deus  fortiam 
dederit  et  victoriam,  ad  ipsius  partem  designata  pars,  ut  quaerit, 
pertineat. 


NOTES  AND  REFERENCES.  165 

Note  54.  —  Page  21. 

Lex  Sax.  XVI:  Dc  terra  aliena  invasa.  1.  Qui  terram  suam 
occupatam  ab  altero  dixerit,  adbibitis  idoneis  testibus,  probet  earn 
suam  fuisse  ;  si  occupator  contradixerit,  campo  diiiidicetur.  2.  Si 
occupator  sibi  concrediderit,  rcddat  hoc  quod  oecupavit,  uon  am- 
plius. 

Note  55.  —  Page  21. 

Lex  Rip.  LXVII.  5  :  Si  quis  pro  hereditate  vel  pro  ingenuitate 
certare  coeperit  post  malo  ordine  cum  sex  in  Ecclesia  coniuret,  et 
cum  duodecim  ad  stappulum  Regis  in  circulo  et  in  hasla  hoc  est  in 
ramo,  cum  verborum  conteniplatione  coniurare  studeat.  Si  non 
adimpleverit,  cum  legis  beueficio  restituat.  Aut  si  quis  eum  contra 
prendere  voluerit,  aut  cum  armis  suis  se  defensare  studeat  ante 
Regem,  aut  omnem  repetitionem  cum  legis  beneficio  restituat. 
The  Utigants  did  not  alwa3-s  fight  themselves,  in  person.  It 
became  customar}-  to  appoint  representative  champions.  The 
fighting  was  tlien  done  by  proxy.  There  is  a  case  in  illusti-ation 
of  this  in  Ritz  Urk.  41  (p.  56)  :  Nulla  melior  visa  est  senteutia 
diffinitio  quam  per  juditiarium  campum  super  hoc  fieret  examinatio 
sic  deinde  statuto  die  et  collata  utrimque  magna  populorum  affluen- 
tia  nobis  et  ipsis  presentibus  advocatis  duo  ex  utraque  parte  homi- 
nes ad  hoc  preelecti  ut  fieri  solet  agressi  sunt  singulariter  et  noster 
homo  propitiante  deo  et  sancto  Remaclo  victor  factus  est  et  ecclesia 
nostra  sua  possessio  ut  ante  a  nostris  premonstrata  et  preambulata 
fuerat  jure  adjudicata  et  per  legem  restituta  est  hinc  ipsi  homini 
qui  est  Gisleberto  nomine  qui  posuit  quasi  in  mortem  aniinam 
suam  pro  nostra  fidelitate  dt'legavimus  imo  dedimus  quartariam 
terre  et  cortilium  jacens  in  dominicatu   .   .   . 

Note  56. — Page  21. 

Lex  Alam,  LXXXIV :  De  his  qui  de  terra  sua  inter  se  conten- 
dunt.  Si  qua  contentio  orta  fuerit  inter  duas  genealogias  de  ter- 
mino  terrae  corum,  et  unus  dicit :  Hie  est  noster  terminus,  alius 
revadit  in  alium  locum,  et  dicit :  Ilic  est  noster  terminus,  ibi  prae- 
sens  sit  Comes  de  plebe  ilia,  et  ponat  signum  ubi  iste  voluerit,  et 
ubi  ille  alius  voluerit   terminum,    et  girent   ipsam    contentionem. 


166  EARLY  HISTORY  OF  LAXD-HOLDING. 

Postquam  girata  fucrit  veniant  in  mediiun,  et  praesente  Comite 
tollaut  de  ipsa  terra,  quod  Alainaiiui  curlludi  dicunt,  et  ramos  de 
ipsis  arboribus  iuflgant  in  ipsam  terram  quam  tollunt,  et  illae 
genealogiae  quae  coutendunt  levent  illam  terram  praesente  Comite, 
et  commendent  in  sua  manu  :  ille  involvat  in  fanone,  et  ponat  sigil- 
lum,  c't  commendet  fideli  manu  usque  ad  statutum  placitum.  Tunc 
spondeant  inter  se  pugnam  duorum.  Quaudo  parati  sunt  ad  pug- 
nam,  tunc  ponant  ipsam  terram  in  medio,  et  tangant  ipsam  cum 
spatis  suis,  cum  quibus  puguare  debent,  et  tcstificentur  Dcum  crea- 
torom  ut  cuius  sit  iustitia,  ipsius  sit  et  victoria ;  et  pugnent. 
Qualis  de  ipsis  vicerit,  ipse  possideat  illam  contentionem ;  et  illi 
alii  praesumptiosi,  quia  proprietatem  contradixerunt,  duodecim  soli- 
dos  coniponunt. 

Rotluir  CCXXXI :  Si  quis  alium  de  re  mobile  aut  immobile  pul- 
saverit  dicendo,  quod  malo  ordine  possideat,  et  possessor  negaverit, 
ita  prospeximus  :  quod  si  per  annos  quinque  fucrit  possessor,  tunc 
ipse  qui  possedit,  aut  per  sacramentum  debeat  negare,  aut  per  pug- 
nam se  defendere,  si  potuerit. 

Grimoald  lY :  Si  quis  per  xxx  annos  posscderit  casam,  fami- 
liam  vcl  terras,  et  cognitum  fuerit,  quod  eius  possessio  fuit  per  xxx 
annorum  curricula,  ad  pugnam  non  pcrvcniat :  nisi  ipse,  qui  posse- 
dit secundum  qualitatcm  pecuniae  cum  sacramento  suo  defeudat: 
nam  per  pugnam,  ut  supra  diximus,  non  fatigetur. 

Whether  the  custom  of  fighting  for  land  obtained  in  England 
before  the  Conquest  is  doubtful.  After  the  Conquest  it  obtained 
generally,  except  in  regard  to  lands  in  Kent  held  according  to 
the  custom  of  Gavelkind.  Cf.  Kent  Custum.  XXI :  Of  the  tene- 
ments which  are  holden  in  Gauelkinde,  there  shall  no  battail  be 
joined,  nor  graund  assise  taken  by  xii  Knights,  as  it  is  used  in 
other  places  of  the  realme.  Then  read  the  account  of  a  judicial 
combat  in  Melsa  Chron.  II.  pp.  97-102.  The  date  of  the  combat 
is  between  A.  D.  1249  and  12 G9.  The  last  case  of  battle  for  land 
before  English  judges  was,  we  believe,  that  which  took  place  in 
Tothill-fields,  AVestminster,  in  the  reign  of  Elizabeth,  A.  D.  1571. 
Spelman,  who  was  present  on  the  occasion,  describes  the  procedures 
in  his  Glossar}-,  sub.  voc.  campus.  Fighting  for  land  was  lawful, 
however,  until  the  year  1819,  when  an  Act  was  passed  (59  Geo. 
III.,  c.  46)  abolishing  "  Wager  of  Battel,  or  joining  Issue  and  Trial 
bv  Battel  in  Writs  of  Right."     See  Kent  Custum.  p.  278. 


NOTES  AXD  REFERENCES.  1G7 

Note  57.  —  Page  22. 

Lex  Alam.  LXXXIV :  Si  qua  coutentio  orta  fuerit  inter  duas 
genealogias  .  .  .  Sec  Note  5G,  where  tlie  passage  is  given  in  full. 
The  procedure  was  the  same  whether  tlic  dispute  was  between  in- 
dividuals or  between  clans.  The  title  of  the  passage  is :  De  his 
qui  de  terra  sua  inter  sc  contendunt. 

Note  58.  —  Page  22. 
Caesar  VI.  22.     The  passage  is  given  in  Note  51. 

Note  59.  — Page  22. 

See  Du  Cange  sub  voc.  guerra.  It  is  perhaps  going  too  far  to 
Ba}-  that  '■'■  gewere  is  without  doubt  the  same  word  as  gwerra."  In 
my  own  mind  there  is  httle  or  no  doubt  upon  this  point.  The 
passages  of  Fulda  Cod.  (447,  448)  which  are  cited  to  prove  tliat 
the  gewen'da -fxas  the  vestitio  do  not  prove  this.  Cf.  447  :  testes  qui 
vestitioncm  viderunt ;  and  448  :  testes  qui  hoc  audierunt,  et  viderunt 
giweridam.  The  vestitio  has  reference  to  the  giving  over  of  the 
land,  the  transfer  of  it  to  the  grantee  ;  the  gewerida  has  reference  to 
the  taking  possession  of  the  land  b}-  the  grantee,  and,  perhaps,  to  a 
demonstration  b}-  him  of  his  newly  acquired  dominion  over  it. 
The  alienation  on  the  one  liand,  and  the  taking  possession  on  the 
other,  were,  in  tliis  early  period,  two  distinct  procedures.  Cf.  Lex 
Sal.  XL VI :  De  affatomie.  The  reader  will  find  the  passage  cited 
in  Note  153.  The  fundamental  idea  of  the  word  gewere  seems  to 
have  been  a  demonstration  or  exertion  of  force  to  secure  posses- 
sion. "We  may  be  wrong,  however,  in  this  matter.  The  student 
should  read  Andreas  Ileusler's  book  entitled,  Die  Gewere  ("Weimar, 
1872,  8°).  It  contains  a  valuable  bibliography.  See  also  Grimm 
Rechtsalt.  pp.  555,  556. 

Note  GO.  — Page  22. 

Ilenneb.  Urkb.  XL :  discordia  sive  gwerra.  INIon.  TVeihonsteph. 
p.  407  :  prodiolum  hereditario  jure  dicens  sibi  dcbere  succedere, 
werram  fratribus  intulit,  que  ita  decisa  est.     Cf.  Wirtcuib.  Urkb. 


168  EARLY   HISTORY  OF  LAXD-HOLDING. 

CLIII :  hercditatora  injuste  invasam,  quasi  hereditario  jure  sibi 
vindicavit.  Note  the  words  non  invasi  contra  legem  in  Lex  Baiw. 
XYI.  2.  The  passage  is  given  in  Note  53.  Cf.  Hist.  Frising. 
Num.  DCCII :  Odalschalc  Triente  Episcopus  per  nialorum  suasio- 
nom  ad  Puuzanam  viiiearum  Saucte  Marie  iuvasiouem  fecit  injuste. 

Note  G1.  — Page  22. 

Cod.  S.  Galli  1G4:  conquesitura  nostrum,  quam  eonquesivimus 
adque  conlaboraviuuis.  Ibid.  181  :  oonquesitio  in  villa.  Ibid.  186  : 
conquesitum  meum  cum  orani  marca  sua  (cf.  Tacitus  Germ.  16: 
colunt  discrcti  ac  diversi  ut  fons  ut  campus  ut  nemus  placuit.) 
Ibid.  190 :  quicquid  ibidem  pater  mens  conquesivit  et  mihi  in  he- 
reditatem  dimisit  .  .  .  conquesitionem  patris.  Ibid.  198 :  con- 
qucstum  mourn.     Bc3er  Urkb.  119:  proprisum. 

Fulda  Codex  472  :  capturam  in  terminis  villac  comprehensam. 
Ibid.  479:  comprehensio.  See  also  Nos.  513,  515,  520,  532: 
decern  capturas ;  631:  captam  capturam.  Lauresham  Codex 
CCXLIX :  unum  proprisum  cum  acdificio,  et  mansis,  campis, 
pratis,  etc.  (cf.  again  Germ.  16).  Ibid.  CCLII :  proprisum  qui 
jacet  in  illo  angulo  ubi  Suarzaha  intrat  in  fluvium  "Wisscoz. 
Fulda  Cod.  311:  capturam  in  silvis.  Ibid.  313:  quartam  par- 
tem unius  capturae.  See  also  377,  391,412,462,  465:  captu- 
ram in  silva  Bochonia  comprehensam.  Cod.  S.  Galli  547 :  quic- 
quid in  illo  saltu  conprehensum  habuit.  Hist.  Frising.  Num. 
DXVIII :  liercditatem  meam  cum  omui  conquestu  meo  (cf.  Note 
35).  Ibid.  DXXXIV:  conquesto  atque  conlaborato.  Cf  DCT  : 
quicquid  ad  colendum  comprehensum  habuissent.  Lauresham  Cod. 
MMCCLXXXV :  capturas.  Ibid.  CCCXIII :  meum  proprisum. 
So  in  DCXX\T;II  :  proprisum  quem  pater  raeus  proprisit.  Cod. 
S.  Galli  325  :  conquestum  meum.  Ibid.  360  :  meam  conquisitio- 
nem.  See  also  373 :  conquestu  meo.  References  to  Capturae 
abound  in  Fulda  Trad.  See  for  examples  Cap.  42,  Nos.  16,  18, 
102,  104,  105,  120,  139,  143,  158,  195,  196,  204,  219,  221,  222, 
286,  310,  and  so  on.  The  student  will  easily  find  as  many  exam- 
ples as  he  wishes,  by  simpl}'  glancing  over  the  pages. 


NOTES  AND  REFERENCES.  1G9 

Note  G2.— Page  23. 

Formula  CCCXIII  (Roziere  I.  p.  373).  Cf.  Mon.  Wcibensteph. 
p.  3Gt  :  prcdium  quale  tuuc  in  potestate  habuit.  AVirtemb.  Urkb. 
XC  :  res  in  potestate.  Ibid.  CXIX :  potestativa  clominatione  in- 
tegriter  habere.  Ibid.  CXLVIII :  proprias  res  potestative  possi- 
dere.  Trad.  Wiz.  CLXXVIII :  habere  etdorainare.  So  in  CI  and 
CXIII.  Chart.  Sithiense,  p.  22  :  possedere  vel  dominare.  Cod.  IS. 
Galli  219  :  sicut  in  hac  die  potestativa  manu  videar  habere.  Ibid. 
619  :  potestativa  manu  possiderc.  llist.  Frising.  CCCLXV :  jure 
dominationis  habere.  Allodial  property-  is  constantly  described  as 
a  possessto  vel  dominatio.  See  Formula  CXVIII :  quantumcunique 
in  ipso  loco  mea  videtur  esse  possessio  vel  dominatio.  So  also 
in  CXXX,  CLXXII,  CXCIV,  and  in  any  number  of  others.  Also 
in  the  documents  Chart.  Sithiense,  p.  49,  and  p.  70  ;  Wirtemb. 
Urkb.  LXII ;  Cod.  Trad.  Lunaelac.  XIX,  XLIX,  LXIV,  LXX, 
XCVIII ;  Hist.  Frising.  Num.  CCCIX.  It  is  a  common  formula. 
Innumerable  examples  might  be  adduced.  It  is  worth  while  to 
observe  that  the  phrase  possessio  vel  dominatio  is  applied  to  all 
kinds  of  land, — meadows,  pastures,  and  forests,  as  well  as  house 
lots  and  arable  lots.  The  landlordship,  the  dominion,  of  the  allo- 
dial proprietor,  was  not  limited  to  house  lots  and  aral)le  lots,  as 
some  writers  have  told  us.  It  extended  over  meadows,  pastures, 
and  forests  as  well :  campis,  pratis,  pascuis,  silvis  ;  and  even  over 
the  communiis  ;  that  is  to  say,  over  lands  held  in  common,  or  in  un- 
divided shares.  See,  for  example.  Formula  CXVIII ;  and  Mohr 
Cod.  Dipl.  35  (Cod.  S.  Galli  G80)  :  talem  usum  habuimus,  qualem 
unus  quisque  liber  homo  de  sua  proprietate  }i.\stQ  et  legaliter  decet 
habere,  in  campis,  pascuis,  silvis,  lignorumquc  suceisionil)us,  atquo 
porcorum  pastu,  pratis,  viis,  agnis,  aquarumque  decursibus,  pisca- 
tionibus,  exitibus  et  reditibus.  The  existence  of  private  rights  in 
common  land  will,  however,  be  considered  at  length  in  another 
connection. 

Note  O-S.  —  Page  23. 

As  time  went  on,  the  chiefs  and  the  kings  assumed  the  right  to 
distribute  the  land  as  they  i)leased.  Certain  tracts  of  land  were 
assigned  to  certain  persons  by  formal  grants,  usually  in  writing, 


170  EARLY  HISTORY   OF  LAND-HOLDING. 

and  authenticated  by  the  signatures  or  names  of  witnesses.  The 
written  grant  is  described  in  tlie  Lex  Rip.  as  a  tcstamentum  Regis. 
See  Tit.  LX.  It  is  described  as  a  hoc  by  the  EngHsh.  Hence  boc- 
land,  i.  e.  land  held  by  a  document  from  the  chief  or  king.  See 
Alfred  42  ;  and  the  Laws  of  Henry  I.  LXX.  21  (Thorpe,  p.  575). 
See  also  Cnut  13  and  78.  The  folc-land  appears  to  have  been  the 
land  occupied  by  the  mass  of  the  people,  in  which  titles  were  based 
ui)on  priorit}-  of  possession.  The  title  to  boc-land  was  based  upon 
the  possession  of  a  hoc,  or  written  grant.  Many  men  had  property 
botli  in  folc-land  and  boc-land.  See  Edward,  §  2.  The  kings  held 
property-  in  fulc-land.  We  meet  with  cyniges  folc-land  in  Kemble's 
Codex  CCLXXXI.  There  is  a  famous  passage  upon  the  folc-land 
in  Baed's  letter  to  Archbishop  Ecgbirht.  See  Smith's  edition  of 
Baed,  p.  309. 

Among  the  Ostrogoths  the  word  pictallum  was  used  to  describe 
the  written  grant.  Cassiodorus  Varia  I.  18  :  si  Romani  praedium 
sine  delegatoris  cujusquam  pictatio  presumptor  barbarus  occupa- 
vit,  cum  priori  domino  submota  dilatione  restituat.  Tlie  reading 
pctitione  for  pictatio  is  senseless.  The  word  pictatium  occurs  again 
in  Varia  III.  35  :  presenti  jussione  ceusemus,  ut  quicquid  ex  nostra 
ordinatione  patritium  Libcrium  tibi  matrique  tuae  per  pictatium 
constiterit  deputasse,  in  suo  robore  debeat  permanere.  The  word 
occurs  also  in  Theoderic's  Edict. 

The  possession  of  written  documents  gave  to  the  land-owners  a 
great  sense  of  security.  They  were  everywhere  sought  for,  and 
generally  obtained.  A  whole  chapter  in  the  history-  of  land-holding 
is  contained  in  the  following  few  lines  of  one  of  the  Fulda  records. 
Fulda  Cod.  261  :  proprisit  sibi  Amalungus  partem  quendam  de 
silva  quae  vocatur  Bocehonia,  quam  moriens  dcreliquit  filio  suo 
Bennit,  qui  ad  nostram  accedens  clementiam  postulavit  celsitudini 
nostrae  auctoritatis  pracceptum  circa  cum  confirmare  deberemus, 
quatenus  ipse  quoad  veniret  absque  uUius  prejudicio  tcnere  et  pos- 
sidere  quicto  ordine  deboret  .  .  .  Precipientes  ergo  jubemus  ut 
nullus  fidelium  nostrorum  presentium  scilicet  et  futurorum  prefa- 
tum  Bennit  vol  heredes  illius  de  hoc  propriso  quod  in  lingua  eorum 
dicitur  biuanc  expoliare  aut  inquietare  ullo  modo  prcsumatis  sed 
liceat  sicut  diximus  ei  per  hoc  nostrum  preceptum  ipsam  terrara 
quanturacunque  pater  illius  proprisit  et  ei  in  hereditate  demisit 
tenere  atque  possedere   ut  prescriptum  est :  et  ut   hec  auctoritas 


NOTES  AND   REFERENCES.  17 1 

firmior  habeatiir  vel  per  tempora  melius  conseruetur  dc  anulo  nos- 
tro  subter  sigillare  jussimus.  The  date  of  this  document  is  A.  D. 
811,  Dec.  1st. 

By  means  of  these  documents,  testamenta  or  "praecepta  (cf.  Lex 
Sal,  XIV.  4),  a  direct  relationship  was  created  between  the  chief 
or  king  and  the  provincial  land-owners.  Cf.  the  formula  CCCCXII : 
Relatione  Pagensium  ad  Rege  Dirccta.  AVhen  a  man  held  his 
lands  by  a  document  or  documents  from  the  king,  he  was  thereby 
brought  into  a  direct  personal  relationship  with  him.  It  would  not, 
perhaps,  be  too  much  to  say,  that  the  consolidation  of  the  Merovin- 
gian and  Carolingian  Empire  was  chieflj-  due  to  the  introduction  of 
title  deeds  held  from  the  head  of  the  Empire.  The  consolitlation 
of  England  was  in  the  same  way  chiefly  due  to  the  conversion  of 
folk-land  into  hoc-land. 

Note  64.  — Page  24. 

Before  the  introduction  of  written  documents  and  title  deeds, 
the  people  spread  over  the  country  and  settled  wherever  they 
pleased,  more  or  less  under  the  direction  of  their  chiefs  and  kings. 
Cf.  Caesar  VI.  22  :  magistratus  ac  principes  in  annos  singulos 
gentibus  cognationibusque  hominum,  qui  una  coierunt,  quantum 
et  quo  loco  visum  est,  agri  attribuunt  .  .  .  The  chiefs  appear  to 
have  had  nothing  to  do,  at  this  time,  with  the  settlement  of  the 
individual  members  of  the  gens  or  cognatio.  "We  infer  from  the 
colunt  discreti  ac  diversi  utjbns  ut  netnus  ut  campus  placiit  of  Ger- 
mania  16,  that  the  individual  settled  wherever  he  pleased,  wherever 
he  found  a  pleasant  place,  and  room  enough  for  his  slaves  and  his 
cattle.  This  inference  is  more  than  conlirmed  by  the  testimony  of 
tlie  later  records.  See  references  to  comprehensiones,  proprisa,  con- 
questa,  and  cnpturae  in  Note  Gl.  To  these  references  we  may  add 
those  which  follow.  Lex  Baiw.  XVL  2  :  Ego  in  tua  opera  priore 
non  invasi  contra  legem,  quia  mea  opera  et  labor  prior  hie  est 
quam  tuns.  (See  Note  53  for  the  rest.)  Cod.  S.  Galli  25  :  quod 
ego  adquesivi  vel  laboravi.  Il)id.  202  :  novalc  ad  S.^galpah  ;  239  : 
roncale  meo  nuneupatum  nomine  ;  3;M  :  novnle  Adalrauimiswilarc, 
quantum  il)idem  genitor  Adalram  excolere  videbatur ;  337:  unam 
runcalem  ;  352  :  novales  iii ;  439  :  locum,  qualiter  tunc  per  denotata 
signa  segregatus  est  securiter  nos  haberemus,  nee  ullus  incidcndi 


172  EARLY   HISTORY   OF  LA^'D-HOLDING. 

vel  extirpandi  infra  denotata  signa  habeat  potestatem  ;  447:  runca- 
leni,  I  hobam  et  amplius  continontem  ;  514  :  potestatem  quam  lia- 
buernnt  in  Goldahiin  marclia ;  G43  :  silvulam  ab  aliorum  potestate 
segregatam  cum  legituuis  marchis.     Hist.  Frising.  Num.  CCLXII : 
exaratum  ;  DCl :  quicquid  in  ipso  die  habere  vidcrentur  culti  vel  in- 
culti,  vel   ad    colendum  conprehensum  habuissent ;    DCXXXIII : 
cinctadam  unam.     Trad.  Wiz.  LXXVI :  quicquid  ibidem  laboratum 
habeo  aut  inccps  laborare  potuero  ;  CLXXXVI :  duas  stirpis  ad 
slirpand.     Lever  Urkb.  108  :  bil'angum  unum  ubi  possunt  edificari 
mansa  centum  [^ap-i  pro  c  cidtoribus^  nccnon  insaginari  prorci  mille  ; 
512  :  terram  novalium  ad  viginti  mansos  vel  amplius.     Lauresham 
Codex  CLXXXXIX  :  bifangos  in  ;  CCXVII :  bifangum  qui  dieitur 
Geroldeshufa  .   .   .  bifango  Engillielmi ;  CCXI :  quicquid  in  silva 
adjacent!   conlal)orare,   aut  stirparc,   vel   aedificare   sou   attrahere 
potuero ;   CCXLIV :  rem  nostram  in  Basiuheimcr   marcha,  ilium 
bilangiun,    stirpatum,    et    pro[}risum    ad    stirpandum ;    CCXLV : 
bifangum  vel  mastunga  ;  CCLXII :  terram  factam  et  adhuc  in  silva 
faciendam  ad  x  jurnales  ;  CCCLXIV :    collaboratum  meum  quern 
modo  habeo,  et  quidquid  videtur  esse  mea  possessio.   For  possessiones 
and  duminaliones  see  Note  G'l.     Lauresham    Cod.  CCCLXXVII : 
stirpo,    habente   in   longitudine   perticas    xxx   in    latitudine    xx ; 
CCCX :    occupationem    ad  decern  hubas   \_agri  pro  x  cuUorihus]  ; 
DCCCCXCVl :  laboratum  ;  MMCCCLXXXIII :  stirpum  in  marca  ; 
MMDCCCXXXV:    bivangum.     Fulda   Cod.  88:    hereditatem    a 
parentibus  et  a  nobis  elaboratum  aut  exquisitum  ;  9!)  :  septum  id 
est  bifang  ;  223  :  unum  ambitum  quern  nos  bifang  appellamus  ;  300  : 
in  illo  septo  duas  hobas  unam  in  silva  alteram  in  terra  ;  323  :  bi- 
fangis  et  novalibus  quae  capta  et   possessa  sunt  ex  his   duabus 
forcstis  .   .   .  de  territoriis,  de  novalibus,  vel  devillis  ;  395:  bifang 
in  marcu  villarum  ;  413  :  unam  bizumam  cujus  longitudo  xxx  virga- 
rum  est,  latitudo  vcro  xv  ;  4  GO:  bifang;  465:  ambitus  capturae ; 
501  :  elaboratum  meum  in  pago  ;  542  :  unum  ambitum  in  marcu  ; 
757  :  biuanc.     Lisch,  Urkb.  11.  No.  VII :  incultam  silvam  a  nova- 
libus extirpaverint.     Cod.  Morav.  CXXXVT  :  circuitum  meum  in 
Prahensi  provincia,   has  villas  cum  hominibus  et  terris,  silvis  et 
pratis    continentem.     Cf.    also    CXXXVII,    CXLVI,    CXLXIX, 
CCXXTII;    CXCI:    villam     et     circuitioncm     silvc ;     CCLXXV 
(CCXCII?)  :  cum  omnibus  circuitionibus  silvarum,  sivc  rivulorura 
aut  agrorum.     Cf.  Zahn  Urkb.  8  :  res  proprietatis  nostre,  id  est 


NOTES  AND  REFERENCES.  173 

teiTa  exartata,  parata  scilicet  ad  arandiira,  mansos  intcgros  viii 
{_agn  pro  viii  cultoribus],  id  est  ad  unamquamque  coloniam  [i.  e. 
mansum]  jugera  xc,  et  de  silva  undique,  iu  gyrum  scilicet  ac  per 
omnes  partes,  miliariimi  unuiu  cum  terris,  pratis,  pascuis,  etc. 
Here  we  have  almost  the  type  of  the  primitive  settlement ;  only  in 
the  earliest  time  the  breadth  of  the  mark,  or  border  land,  was  not 
defined.  As  Caisar  says  :  neque  qiiisquam  agri  modum  certum  aut 
fines  habet  proprios.  The  free-lord  ditl  not  know  how  far  his  do- 
main extended.  Cf.  Cod.  Morav.  XXXV  :  in  banc  partem  silve 
sine  termini  conclusione  ;  and  Ibid.  XLVI :  hereditas  et  proprietas 
in  omnibus  marchis.  The  mark  was  defined,  at  first  roughl}',  as  in 
the  case  above  cited,  then  more  and  more  exacth'.  See  Notes  32, 
33,  34.  Even  after  estates  came  to  be  defined  by  exact  boundaries, 
the  free-lords  extended  their  possessions  b}'  appropriating  unoccu- 
pied or  uncultivated  lands.     See  Notes  35—41. 

Note  65.  —  Page  24. 

See  Orig.  Nassoic.  LXXIII.  Cod.  S.  Galli  117.  Mon.  Nideralt. 
Dipl.  XIV  (p.  121)  :  Avus  noster  Carolus  licentiam  tribuit  suis 
fidelibus  in  augmentatione  rerum  Ecclesiarum  Dei  in  Pannonia 
carpere  et  possidcre  hereditatem.  The  document  is  printed  also 
in  Cod.  Dip.  Morav.  I.  pp.  30,  31. 

Note  6G.  — Page  24. 

This  etymolog}'  has  been  questioned,  but  no  good  reasons  have, 
so  far  as  we  know,  been  raised  against  it.  See  the  AVorterbucher 
of  Grimm,  Fick,  and  then  that  of  Kluge.  The  root  from  which 
both  erbe  and  arheit  appear  to  be  derived  is  rahh,  or  rab^  meaning  to 
seize,  to  lay  hold  of,  to  take  eagerly  or  vehementl}'.  See,  in  Skeat's 
Etymological  Dictionarj'  of  the  English  Language,  the  list  of  Ar3'an 
Roots.  The  erbc  would  be,  accordingl}',  first  a  seizure  or  ai)pro- 
priation,  a  "take"  of  land;  then,  when  it  was  transmitted  from 
father  to  sons,  from  sons  to  grandsons,  it  would  be  regarded  as 
an  inheritance.  The  original  meaning  of  the  word  would  become 
obsolete.  This  is  our  theorj',  and  it  is  supported  by  testimony  of 
peculiar  interest.  In  the  first  place,  we  have  the  passage  in  the 
Lex  Baiw.  (XVI.  2)  to  show  that  he  who  first  cultivated  a  piece  of 


174  EARLY  HISTORY  OF  LAND-HOLDING. 

land  was  regarded  as  the  owner  of  it.  In  vindicating  liis  right  to 
it  he  says  :  niea  opera  et  laljor  prior  hie  est  quani  tuus.  We  should 
expect,  therefore,  to  lind  some  word  used  to  describe  landed  prop- 
erty, in  whicli  the  idea  of  prior  occupation  and  labor  would  be 
expressed.  Searcliing  in  our  records  we  find  the  very  word.  We 
find  property-  in  land  described  as  a  vorwei-c.  I)u  Cange  cites  a 
passage  from  the  Life  of  8t.  Mainworc :  ut  unum  vorwerc  cum  xx 
lidis  et  XII  aratris  ei  concederetur.  See  the  Glossarium  sub  voc. 
vorwerc.  Then  we  find,  in  Cod.  Dipl.  Lubec.  II.  viii,  the  follow- 
ing gloss :  allodium  melius  dixisset,  nam  vorwerc  latinum  non  est, 
sed  vulgare.  So  the  word  vorwerc  was  used  by  the  common  peo- 
ple instead  of  tlie  word  allodium.  How  beautil'ully  our  theory 
about  the  history  of  the  word  erbe  is  illustrated  in  this  fact !  And 
the  historj'  of  the  word  alod  is  elucidated.  The  word  appears  to 
have  signified,  originalh',  a  farmstead  and  land  held  from  most 
ancient  times  ;  therefore  an  inheritance  or  patrimon}'.  See  Skeat's 
Dictionary  sub  voc.  allodial.  Cf.  Lex  Baiw.  XVI.  2  :  habeo  testes 
qui  hoc  sciunt,  quod  labores  de  isto  campo  semper  ego  tuli,  nemine 
contradicente  exartavi,  mundavi,  possedi  uscjue  hodie,  ct  pater 
mens  reli(iuit  mihi  in  possessione  sua.  Tlie  alod  was  primarily  a 
"  take  "  of  land  ;  then,  as  it  was  held  from  generation  to  genera- 
tion and  no  longer  "taken,"  it  came  to  be  simply  an  inheritance. 
It  was  an  inheritance  secured  I)}'  appropriation  or  conquest,  and 
then  maintained,  when  necessary,  l)y  force.  At  a  later  time  we 
have  (dlodia  held,  not  in  virtue  of  prior  occupation,  but  in  virtue 
of  grants  from  prior  occupants.  They  are  then  property  in  a 
modern  sense  of  the  term. 

Note  G7.  —  Page  24. 

"What  is  said  in  the  preceding  note  about  the  arheit  and  erhe, 
the  voriocrc  and  allodium^  is  further  illustrated  in  tlie  following 
passages  from  early  records.  Chart.  Wcrth.  23  (Lacomblet  IJrkb. 
19)  :  pro  luiereditate  couipreliendi  a  rivulo  qui  dicitur  Burgbeki 
usque  ad  ilhun  rivuhim  (jui  in  occidentali  parte  Widubcrgi  decursit, 
cum  onuii  integritate  us(|ue  ad  ripam  Rurae,  excepta  ilia  particula, 
quam  Folcbertus  in  proximo  angulo  inter  Iluram  et  AVidubergam 
olim  slirpare  inclioavit.  Fulda  Cod.  88  :  hercditates  a  parentibus 
et  a  nobis  elal)orutum  aut  exquisitum.     Ibid.    117,  118,  119.     It 


NOTES  A^iD   REFERENCES.  175 

appears  in  these  documents  that  a  certain  man  named  Swidmot 
made  an  appropriation  or  "take"  of  land  :  caj)tura  circa  fluvium 
Elraaha.  Wlien  he  died  this  "take"  was  an  inheritance  for  his 
sons.  Each  one  received  a  share :  quicquid  in  eadem  captura  ad 
meam  proprietatem  ex  paterna  hercditate  pertinere  dinoscitur. 
These  shares  were  afterwards  ahenated  by  their  respective  owners 
to  St.  Boniface  at  Fukla.  A  whole  chapter  in  the  history  of 
property  in  land  might  be  written  upon  the  text  of  these  three 
documents.  Man}'  others  of  a  similar  nature  might  be  cited.  See 
Notes  61  and  64,  and  consider  how  all  the  occupationes,  capfiirae, 
conquesfa,  would,  had  they  not  been  given  to  the  Church  b^'  the 
occupiers,  captors,  and  conquerors,  have  passed  to  sons  and  grand- 
sons, as  inheritances. 

Note  68.  —  Page  25. 

Chart.  Wcrth.  5,  or  Lacomblet  Urkb.  No.  6.  Cf.  again  Ibid. 
19  :  tradidi  comprehensionem  illam  quam  ego  in  propria  hercditate 
comprehendi.  Also  27  :  quicquid  ibi  habuimus  aut  per  jus  heredi- 
tatis  aut  per  conprehensionem.  "\Ye  find  in  our  note-books  a  great 
quantity  of  such  references  ;  but  these  will  be  sufficient.  The  stu- 
dent can  easily  find  others  for  himself. 

Note  09. —Page  27. 

The  word  Einzclhof  means  an  isolated  farmstead.  The  word 
Gehoferschaft  means  a  number  of  farmsteads  clustered  together. 
The  Gehljfcrschift  was  an  outgrowth  or  extension  of  the  Einzel- 
hof.  The  heirs  in  the  Einzclhof  became  too  numerous  to  live  in 
one  house.  New  houses  had  to  l)e  buillt.  Then  we  have  several 
houses  where  there  was  originally  one,  a  Gehoferschaft.  The  num- 
ber of  houses  in  the  Gehoferschaft  increased  witli  the  mimber  of 
heirs.  The  Gehoferschaft  is  described  as  an  Erbschaft.  The  in- 
habitants are  described  as  an  Erhgenossenschaft. 

It  is  sometimes  argued,  that  the  GehUferscJiaft  or  Erhrjenossen- 
schafl  is,  as  an  institution,  antecedent  to  the  Einzelhof  The  argu- 
ment is  inconclusive.  It  assumes  that  the  association  of  heirs,  the 
Erhgenossenschaft ^  existed  before  any  inheritance,  Eric^  existed  for 
them.     This  seems  to  us    an   illegitimate  assumption.     "We  meet 


176  EARLY  HISTORY  OF  LAXD-HOLDINa. 

with  gentes  and  cognationes  hominum  m  Caesar  VI.  22  :  but  have 
we  any  right  to  assume  that  these  associatious  were  not  previously 
formed  by  the  multiplication  of  heirs  upon  isolated  domains  ?  Caesar 
says  that  the  people  were  constantl}-  migrating.  But  have  we  any 
right  to  assume  that  they  had  been  always  migrating?  It  is  quite 
possible,  if  not  probable,  that  a  period  of  permanent  settlement 
preceded  the  migrations  of  Caesar's  time. 

At  the  time  of  the  Folk-Laws  we  find  that  associations  of  kins- 
men were  formed  by  the  multiplication  of  heirs  upon  isolated 
domains.  AVhy  assume  that  they  were  formed  in  a  different  way 
in  earlier  times  ? 

We  hear  a  good  deal  of  talk  about  a  tribal  system  which  existed 
among  the  Germans  up  to  the  time  of  Caesar  and  Tacitus.  It  may 
be  that  a  tribal  system  did  exist  up  to  that  time  :  but  what  do  we 
know  about  it?     Nothing,  of  course.     Why  talk  about  it  then  ? 

We  are  told  that  the  tribal  system  of  the  Germans  closely  resem- 
bled that  of  the  ancient  Irish  :  but  why  should  it?  Differences  are 
as  common  in  history  as  coincidences.  Different  people  have 
different  ideas,  different  ways  of  doing  things,  different  modes  of 
life,  different  institutions. 

How  many  different  departures  are  made  from  the  famil}-,  the 
elementary  group,  according  to  variable  conditions  and  circum- 
stances !  Give  the  family  bows,  arrows,  and  fish-hooks,  and  no 
other  means  of  support,  it  will  at  once  seek  some  good  ground  for 
hunting  and  fishing.  If  the  game  and  fish  arc  plontifnl,  the  family 
maj'  remain  united  for  man}'  generations  ;  but  if  game  and  fish  are 
scarce,  the  members  of  the  family  luive  to  separate  in  order  to  live. 
Given  large  flocks  and  herds,  and  plenty  of  pasture  ground,  the 
family  ma}'  continue  united  for  a  while  ;  but  when  the  pasture 
ground  is  limited,  the  stock  has  to  be  divided,  and  then  the  family 
is  scattered.  Given  large  numbers  of  slaves,  the  famil}^  may 
remain  united,  and  the  slaves  may  be  established  in  village 
communities  round  about  the  residence  of  the  famil}'.  We 
have,  then,  a  village  of  lords  surrounded  by  villages  of  serfs. 
Or  if  the  slaves  are  divided,  the  lords  establish  themselves 
in  isolated  farmsteads,  with  communities  of  serfs  imder  their 
over-lordship.  In  other  words,  the  course  of  history  is  not  pre- 
determined. It  is  divergent  according  to  variable  conditions. 
Starting  with   the  family,  we  see  that  many  dilferent  departures 


NOTES  AND   REFERENCES.  177 

may  be  made  from  it.  DifTerent  departures  mean  different  rcsnlts. 
In  some  places  we  may  have  a  tribal  organization  ;  in  other  places, 
a  system  of  village  communities  ;  in  other  places  we  may  have  a 
system  of  isolated  farms,  or  a  manorial  system. 

Taking  any  one  of  these  various  modes  of  life,  and  varying  condi- 
tions and  circumstances,  many  new  departures  will  be  made,  which 
will  have  very  different  issues. 

Coincidences  are,  nevertheless,  very  common.  The  reason  of 
this  is  that  the  family,  the  elementar}-  group  from  which  the  others 
are  directl}'  or  indirecth'  derived,  is  always  preserved.  It  is  a 
pliysiological,  if  not  a  sociological  fact,  in  all  forms  of  society. 
The  family  can  be  isolated  at  any  time,  and  then  the  processes  of 
differentiation  begin  again.  The  simpler  forms  of  sociological  de- 
velopment are  naturally  reproduced, — the  life  in  isolated  farm- 
steads, the  manorial  system,  the  house  community',  and  the  village 
community'. 

Note  70.  — Page  28. 

The  fact  that  the  common  land  was  subject  to  appropriation  by 
individuals  (see  Notes  61,  64,  65,  66,  67,  68)  is  evidence  to  show 
that  the  common  land  was  simplj'  undivided  land.  But  it  will  be 
urged.  Suppose  the  amount  of  the  common  land  was  limited,  and 
objections  were  made  to  appropriations ;  what  was  done  then  ? 
We  find  an  answer  to  this  question  in  the  Appendix  to  the  Bur- 
gundian  Law.  Lex  Burg.  Add.  I.  Tit.  I.  5  :  agri  quoque  com- 
munis nuUis  terminis  limitati  exaequationem  inter  consortcs  nuUo 
tempore  donegandam.  If  objection  was  made  to  ad  lih'dum  appro- 
priations, the  land  was  divided  among  the  heads  of  the  different 
households. 

It  was  not  always  easy  to  make  these  divisions.  Disputes  arose. 
Among  the  Visigoths  it  was  decided  that  the  best  men,  or  a  ma- 
jority, should  decide  matters  of  dispute.  See  Lex  Wisig.  X.  Tit. 
I.  1,  3,  8,  cited  in  Note  33.  Among  the  Franks,  however,  these 
disputes  were  referred  to  the  king  or  his  missus.  See  Formula 
CXXVII :  De  divisionc  ubi  rege  accederit  missus.  The  passage 
will  be  cited  in  Note  74.  The  division  of  a  common  mark  into  a 
number  of  private  estates  (inter  Jiscum  regis  et  popidares  pcssessiones) 
is  described  in  Formula  CCCCII  (No.  XI,  in  Salonio  Form.). 

12 


178  EARLY  HISTORY  OF  LAND-HOLDING. 

"When  disputes  arose  in  regard  to  rights  of  enjoyment  in  common 
land,  the  land  was  usually  divided.  It  was  regarded,  therefore,  as 
undivided  land,  in  which  ever}-  man  had  a  share  that  he  could  have 
assigned  to  him,  if  he  pleased.  That  it  was  so  regarded  appears 
elearlv  in  a  multitude  of  documents.  In  one  of  the  Laureshara 
records  (Cod.  MCCXXXVI),  for  example,  a  man  alienates  his 
inheritance  in  the  common  forest :  quantum  jure  hereditario  ad  me 
pei-tinere  videtur  de  ilia  silva  communi.  Other  references  will  be 
given  in  other  conuectious.  See,  especiall}-,  Notes  92-95,  99,  and 
100. 

Note  71.  — Page  28. 

Lacomblct  Urkb.  21  :  Dum  omnibus  vicinis  suis  non  habetur 
incognitum  qualiter  Hembaldus  filius  Heribaldi  tradidit  suam  cora- 
prehensionem  illam  quara  ipse  Hembaldus  in  propria  hereditate  et 
in  communione  proximorum  proprio  labore  et  adjutorio  amicorum 
suorum  legiV)us  comprolu'udit  et  stirpavit.  The  communio  proximo' 
rum  is  described  in  Font.  Ker.  Austr.  XXXI,  p.  20  (A.  D.  8G1)  as 
the  confininm  coheredum.  Cf.  Hist.  Frising.  DXVIII :  hereditatem 
meam  cum  omni  conquestu  meo.  Lacomblet  Urkb.  27 :  quicquid 
habuimus  aut  per  jus  hereditatis  aut  per  conprehensionem.  Cod. 
S.  Galli  373  :  quicquid  ibidem  de  paternica  portione  sive  de  con- 
questu meo,  seu  de  conquestu  Irminhardi  fratris  mei  sit.  Beyer 
Urkb.  108  :  in  commarca  ipsius  ville  bifangum  unum  ubi  possunt 
cdificari  mansa  centum.  Ibid.  465  (b)  :  novalia  ad  xx  mansos  vel 
amplius.  In  this  way  inheritances  were  indefinitely  enlarged.  If 
a  man  had  no  room  for  his  people  in  the  Gehoferschaft,  he  sent 
them  out  into  the  forest  or  waste.  There  they  settled  down ; 
houses  were  built ;  arable  lots  (Jtuhae)  were  assigned ;  and  the 
animals  were  turned  out  to  pasture.  Around  the  GeJiiJferschaft^ 
several,  and  sometimes  a  great  many,  subject  communities  were 
thus  established,  —  Hubengemeinden .  The  lord  of  the  Huhen- 
gemeinde  was  an  heir  in  the  Gehofcrschaft.  But  the  Hubenge- 
meinde  was  an  inheritance  for  the  heirs  of  the  founder.  The 
Hubengemeinde  became  in  most  cases  an  Erbschafl,  the  heirs  in 
the  Hubengemeinde  forming  an  Erbgenossenschdft.  In  many  cases 
the  distinction  between  the  Hubengemeinden  and  the  Gehoferschaften 
was  obliterated.     This  happened  when  the  lands  of  the   Gehofer- 


NOTES  AND   REFERENCES.  179 

schaft  were  distributed  in  huhae,  i.  e.  in  tenant  allotments.  In  the 
course  of  the  early  and  middle  ages  the  Huhengemeindea  and  Ge- 
liofcrschaflen  became  quite  confounded. 

Note  72.  — Page  29. 

Lex  Burg.  Add.  I.  Tit.  T.  G  :  Sylvarum,  montium,  et  pascuorum 
unicuique  pro  rata  sui)petit  esse  comuiunionem.  Ibid.  5  :  Agri 
quoque  communis  nuUis  terminis  limitati  exaequationem  inter  con- 
sortes  nullo  tempore  doncgandam.  Ibid.  LXVII :  De  83lvis  hoc 
observandum.  Quicunque  agrum  aut  colonicas  tencnt.  secundum 
terrarum  modum  vel  possessionis  suae  ratam,  sic  sylvam  inter  se 
noverint  dividendam :  Romano  tamen  de  sylvis  medietate  ex  ex- 
artis  servata.  Cf.  Add.  II.  11  :  De  Romanis  vero  hoc  ordinavimus, 
ut  non  amplius  a  Lurgundionibus,  qui  infra  venerunt,  requiratur, 
quam  ad  praesens  necessitas  fuerit,  medietas  terrae.  Alia  vero 
medietas  cum  integritate  mancipiorum  a  Romanis  teneatur :  ncc 
exinde  uUam  violentiam  patiantur.  Then  read  Lex  Burg.  XXXI. 
1  :  Inter  Burgundiones.et  Romanos  id  censuimus  observandum,  ut 
quicunque  in  communi  campo  nullo  contradicente  vineam  fortasse 
plantaverit,  similcm  campum  illi  restituat,  in  cuius  campo  vineam 
posuit.  2  :  Si  vero  post  interdictum  quicunque  in  campo  alterius 
vineam  plantare  praesumpserit,  laborem  suum  perdat,  et  vineam 
cuius  est  campus  accipiat.  Also  Ibid.  XIII :  Si  quis  tani  Bur- 
gundio  quam  Roraanus  in  S3lva  communi  exartum  fecerit,  aliud 
tantum  spatii  de  sylva  hospiti  suo  consignit,  et  exartum,  qucm 
fecit,  remota  hospitis  communione,  possideat. 

Note  73.  —  Page  30. 

See  Alsat.  Dipl.  IX,  XII,  XXXII,  XXXIII.  Trad.  Wiz.  IX, 
X,  XIII.  Neugart  Cod.  Dipl.  V.  Cod.  S.  Oalli  18G,  334,  352, 
438,  676.  Wirtemb.  Urkb.  XLVII,  CCLXVII.  Mon.  Scheftl. 
p.  377  (XXVI).  Cod.  Patav.  I.  xiii  and  lxii.  Hist.  Prising. 
1.  p.  35  (53?).  Ibid.  Nos.  CLXXIX,  CCXLVII,  CCXC,  CCXCIII, 
CCCLXV,  CD.     Two  cases  ma}*  be  given  as  examples. 

Ilist.  Prising.  CXVII :  tres  germani  fuerunt,  et  uno  defuncto 
duo  superstites  fuennit  fratrcs,  ot  dividere  debucrunt  aequaliter 
inter  so  ipsani  hereditatem  dcfuncti  fratris  Scatto,  et  Poapo,  sed 


180  EARLY  HISTORY  OF  LAND-HOLDING. 

antequam  divisio  haec  facta  est,  et  raortuus  est  Poapo  rclinquens 
portionem  suam  filio  suo  Kejoni,  et  ipse  Kejo  bene  valens  portio- 
nem,  quod  ei  accedere  debiiit  contra  patruum  suum  traditit  Deo,  et 
Sancto  Tertuliano  ad  Slechdorf.  Sed  nolente  Kcjone  renuit  omnia 
haec  Scatto,  et  reliquid  lilio  I'uo  Rcginberto.  Tunc  ipsi  missi  cum 
Oreudilo  judice,  et  ceteris  veracibus  hominibus  tractaverunt,  pro 
qua  causa  Reginperht  possidere  debuisset  portionem  nepotis  sui 
Kejoni  hereditas,  quod  ipse  pro  anima  fua  Deo  traditit,  et  Sanctis 
ejus.  Tunc  convictus  cum  lege  et  justitia  Reginpertus  de  presente 
reddidit  Advocate  ipsius  Ecclesiae  et  Archipresbytero  ipsius  Epis- 
copi  Ellannodo  loca  nuncupata  Allingas,  Kupingas,  et  in  Germa- 
reskavve,  ut  amplius  eas  possiderent  praesules  loci  ipsius  absque 
uUa  coutratlictione  evindicatas  jure  perpetuo,  et  ita  finita  est  con- 
tentio  coram  resedentibus,  et  adstantibus  multis.  Et  testes  usu 
Bajowariorum  per  aures  ex  utrisque  partibus  tracti,  ut  amplius 
exinde  finita  esset  contentio. 

Ibid.  CCCLXXIX :  De  traditione,  quam  fecit  Isanhart  Clericus 
filius  Saxoni  ad  Steinhard.  Ipse  quidem  Isanhard  eo  modo  banc 
traditioncm  cum  matre  fua  Tunna  nomine  feceruut,  post  obitum 
Saxoni  patris  fui  coeperunt  fratres  illius  ei  contradicerc  propriam 
hereditatem  a  patre  suo  legitime  derelictam,  ipseque  Isanhart  junior 
erat  fratribus  fuis,  et  propter  infantiam  non  potuit  contendere  contra 
fratres  suos  jam  annorum  aetate  viginti.  Veniens  ad  venerabilem 
Hittouem  Pontificem  et  enarrabit  ei  omnem  necessitatem,  atque 
angustiam,  quam  eis  fratres  ejus  in  propria  hereditate  actam  habu- 
erunt,  at  ille  blande  consolavit  eum,  ipseque  accepta  consolatione 
ab  Episcopo  accessit  ad  altare  Sauctae  Mariae,  et  tradidit  seipsum 
in  servitium  Sanctae  Mariae  semper  Virginis  cum  omnibus,  quae 
habuit,  vel  quodcumque  pater  ejus  Saxo  ei  in  propriam  hereditatem 
dereliquid,  nihil  enim  praetermisit  cum  omni  integritate,  quae  habuit, 
et  banc,  quod  juste,  et  legitime  ad  fratres  suos  conquiri  debuit, 
cum  seipso  Domui  Sauctae  Mariae  in  servitium  tradidit,  et  firmiter 
confirmavit. 

Note  74.  — Page  30. 

Formula  CXXV:  In  Dei  nomen.  Placuit  adque  convenit  inter 
illus  et  illus  germanus  ut  inter  se  de  res  eorum  dividere  debuerunt, 
quod  ita  et  fecerunt  .  .  .  et  hec  paccio  divisiouis  omni  tempore 
firma  permaneat. 


NOTES  AND   REFERENCES.  181 

Formula  CXXVI :  Pactum  divisiones  inter  fratres,  id  sunt  illi  et 
illi,  lierodes  illui  et  illei  quondam,  qualitcr  se  de  alote  eorum 
dividcre  vel  exequare  deberfut,  quod  ita  ot  fecerunt. 

Formula  CXXVII :  De  divissione,  ubi  rege  aecederit  missus. 
Dum  et  divisio  vel  exsequatio  inter  ilkun  et  ilium  seu  consortes 
eorum  de  alode  lui  aut  de  agro  illo  eaelebrare  debetur,  et  quatenus 
petitio  illorum  adfuit  ut  missus  de  palatio  nostro  ad  hoc  inter  eos 
dividendum  vel  exequandum  accedere  deberet  ideo  cognoscite  uos 
misso  nostro,  inlustris  viro  illo,  ad  hoc  inter  eos  cxequando  visi 
fuimus  di[re]xisse.  Propterea  per  praesentem  praeceptum  [decre- 
vimus  ac  iubemus]  ut  ipsum  in  hoc  vos  recipere  faciatis,  et  unicui- 
que  ex  ipsis  iusti  debita  portionem  terminetur,  et  decimo  illo 
suntellitis  quod  exinde  in  fisci  ditionibus,  tam  de  terra,  vineis, 
maneipia  vel  undecumque  redebetur,  ipsi  vir  ille  habeat  ex  nostra 
indulgentia  concessum,  vel  quicquid  exinde  facere  voluerit,  liberam 
habeat  potestatera. 

Formula  CXXIV :  Pactum  inter  parcntes  de  eorum  hereditate. 
Quicquid  enim  inter  propinquos  de  alode  parentum,  non  ad  iudici- 
aria  potestate  coacti,  sed  sponti,  manente  caritate,  iusti  debitum 
uniquique  portio  terminatur,  non  de  rebus  detrimentum,  sed  aug- 
mentum  potius  potest  esse  consendum.  Et  ideo  necesse  est  inter 
se  eorum  facta  scribturarum  series  alligari,  ne  ab  aliquibus  in  poste- 
rum  valeat  refragari.  Ideo  dum  inter  illo  et  gerraano  suo  illo  de 
alode  genitoribus  eorum  illis  et  illis  bone  pacis  placuit  atque  convi- 
nit  ut  eam  inter  se,  manentem  caritatem,  dividere  vel  exaequare 
deberent,  quod  ita  et  fecerunt.  Accepit  itaque  ille  villas  nuncu- 
pantes  illas,  sitas  ibi,  cum  maneipia  tanta  ilia.  Similiter  et  ille 
accepit  econtra  in  compensatione  alias  villas,  nuncupantes  illas, 
sitas  ibi,  cum  maneipia  tanta  ilia.  De  presidio  vero,  drappos, 
fabricaturas  vel  omni  supellectile  domus,  quicquid  dici  aut  nomi- 
nare  potes,  aequalentia  inter  se  visi  sunt  dividisse  A^el  exaequasse, 
et  hoc  invicem  pars  parte  tradidisse,  et  per  fistuca  omnia  partitum 
esse  dixisse. 

Note  75.  — Page  30. 

Lex  Alam.  LXXXVIII:  Si  quis  fratres  post  mortem  patris 
eorum  aliquanti  fucrint,  dividant  portionem  patris  eorum.  Dum 
hoc  non  fuerit  factum,  nullus  rem  suam  dissipare  faciat  usque  dum 


182  EARLY  HISTORY  OF  LAND-HOLDING. 

aequaliter  partiant.  For  descriptions  of  inheritances  see  Cod. 
S.  Galli  28,  72,  112,  159,  174,  185,  373,  459,  etc.  We  have 
selected  these  cases  as  good  examples. 

Note  76.— Page  30. 

Lex  Baiw.  XIV.  Cap.  VIII :  De  divisionc  inter  fratres.  Ut 
fratres  hereditatem  patris  aequaliter  dividant.  Inheritances  are 
described  in  Hist.  Frising.  I.  p.  52  ;  Ibid.  p.  85  ;  and  in  Nos. 
LXIII,  LXXX,  C'LXXV,  CDXVI,  DCI,  DCXCIX.  See  also 
Mon.  Schlehdorf.  Dipl.  VIII ;  and  Cod.  Patav.  I.  xxxviii,  xlvi. 

Note  77. —  Page  30. 

See  Notes  73-76.  Then  Lex  Sal.  LIX  :  De  alodis.  Cf.  Herold 
Text  of  the  same  (Merkel,  p.  72).  See  also  the  Capitular}-  of 
A.  D.  5G0,  §  2  ;  and  the  edict  of  Chilpcric,  circ.  A.  D.  575,  §  3.  Lex 
Rip.  LVI :  De  alodis.  Lex  Fris.  XIX.  Lex  Angl.  Werin.  VI. 
Lex  Sax.  VII.  Lex  Wisig.  Lib.  IV.  Tit.  II.  2  :  quod  in  hcreditatis 
successione  filii  primi  sunt.  Cf.  Ibid.  §  1  :  ut  sorores  cum  fratribus 
aequaliter  succedant.  This  comes  without  doubt  from  the  Roman 
Law.  See  also  Lex  Burg.  Tit.  I.  1.  In  Lex  Wisig.,  and  also 
in  Lex  Burg.,  the  primitive  custom  of  inheritance  is  somewhat 
modified  b}-  subsequent  legislation.  This  is  so  also  in  the  Lombard 
Law.  See  Rothar  CLIV,  CLV.  Here  natural  sons  take  shares 
with  legitimate  sons,  onlj'  their  shares  are  smaller.  Then  read 
Grimoald  V.  If  a  son  dies,  his  sons  are  allowed  to  step  into  his 
place  and  take  shares  with  their  uncles.  The  principle  of  repre- 
sentation is  admitted.  It  appears  to  have  been  introduced  in 
some  places  by  means  of  adoption.  The  grandsons  were  adopted 
as  heirs  in  the  place  of  their  father.  See  Formulae  CXXXI, 
CXXXII,  CXXXIV. 

There  is  ver^-  little  regarding  the  laAV  of  inheritance  in  the  early 
English  records ;  still  we  find  a  few  passages.  See  Kemble's 
Codex  CXLVII :  rus  etiam  hoc  modo  donatum  est,  ut  suum  mas- 
culum  possideat  ct  non  femininum.  Cf.  Alfred  LI :  if  a  man  have 
boc-land,  he  must  not  give  it  out  of  his  maeg-hurg^  if  to  do  so 
was  for1)id(len  by  those  who  first  acquired  it  and  gave  it  to  him. 
King  Alfred  saA-s  in  his  will  that  the  persons,  his  kinsmen,  who 


NOTES  AND   REFERENCES.  183 

have  received  freehold  land  from  him,  must  not  let  it  go  out  of  the 
family.  If  left  to  descendants,  it  must  go  to  males.  Lib.  de  Ilyd. 
p.  332.  That  the  principle  of  inheritance  was  fully  recognized  at 
this  time  appears  evident.  Cf.  Kemble's  Codex  CXCl :  et  jure 
hereditario  firmiter  fixa  permaneat.  That  the  heirs  divided  their 
inheritances  appears  in  Cnut  79  :  let  the  heirs  succeed  to  the  land 
and  the  propert}',  and  divide  it  ver^-  justl}-.  It  must  not  be  in- 
ferred from  the  above  that  women  were  alwa^'s,  or  even  regularh', 
excluded  from  the  right  of  inheritance.  Cf.  Kemble's  Codex 
CCXXXII :  possessoribus  quorum  propria  haereditas,  id  sunt  tres 
sorores.  Probabl}',  except  in  special  cases  like  those  cited  above, 
daughters  took  the  inheritance  when  there  were  no  sons.  This  is 
the  rule  of  Kent  Custum.  X.  The  early  law  of  inheritance  appears 
to  be  here  preserved.  In  other  parts  of  England,  primogeniture 
was  introduced. 

Although  the  law  of  inheritance  differs  somewhat  in  different 
countries,  it  is  quite  safe  to  say  that  sons  were  general!}'  preferred 
to  other  persons  ;  that  they  came  into  their  inheritance  with  equal 
claims  ;  that  the  inheritance  was  consequentl}'  divided  among  them 
in  equal  shares. 

Note  78. —  Page  31. 

Liutprand  LXIX  :  Si  inter  fratres  per  xl  annos  possessio 
fuerit  de  rebus,  seu  de  casis,  vel  de  terris,  quae  indivisae  sunt, 
vel  inter  parentes,  qui  per  xl  annos  possedit,  qualiter  praesumit 
dicere,  per  sacramentum  ad  sancta  Dei  Evangelia  aflirmet,  quod 
de  avo,  aut  de  patre,  aut  de  fratre,  aut  de  aliquo  parente  ipsas  res 
suas  habeat  factas,  aut  per  donationem,  aut  commutationem, 
aut  per  aestimationem,  aut  per  comparationem,  aut  quoraodo  prae- 
sumpserit  dicere  aut  afhrmare  :  et  liccat  ei  postea  ipsas  res  illil)atas 
habere,  et  possidere.  Aliae  vero  res,  quae  divisae  fuerint  inter  fra- 
tres seu  nepotes,  vel  ubi  mensura  tracta  est,  sorte  stante  adae- 
quentur.  Nam  ubi  per  xl  annos  mensura  minime  ambulavcrit,  et 
caussa  probat,  fuerit,  quod  iure  quicto  possedissot,  sicut  supra 
legitur,  per  sacramentum  liniatur,  excepto  si  communiter  aliquid 
possedissct. 

Cf.  Ilist.  Frising.  DLV  :  Kcrolt  et  Kornod  qui  communeni  licicili- 
tatcm   hubuerunt,  non   intt-r  se  divisum  sed  communiter  sine  divi- 


lS-1  EARLY  HISTORY   OF  LAXD-HOLDING. 

sione  usitavcrunt,  sicut  amabiles  fratres  Dei  amore  usitare  debue- 
runt.     See  also  Num.  CDLXVI. 

Note  79.  — Page  31. 

Lacomblet  Urkb.  IG  :  notum  fieri  desideramus  omnibus  tam  pre- 
sentibus  quam  futuris  qualiter  nos  coheredes  et  coiiparticipes  et 
consanguinoi  his  nominibus  .  .  .  tradidimus  agrum  hereditarii 
juris  nostri.  Ibid.  17  :  idcirco  placuit  nobis  coberedibus  et  conpar- 
ticipibus  in  uno  patrimonio,  his  nominibus  .  .  .  tradere  aliquara 
particulam  hereditatis  nostre.  Cf.  Cod.  S.  Galli  386  :  quidquid 
proprietatis  visus  sum  habere  sive  ex  paterna  hereditate  seu  ex  ad- 
quisita,  sive  divisum  habeam  cum  meis  coheredibus,  seu  indivisum. 
Ibid.  480 :  hereditatem  in  Ludolteswilare  in  meam  portionem  a 
coheredibus  accepi.  Ibid.  594 :  silvulae  medietatem,  quam  ibi 
habemus  ego  et  coheredes  mei.  See  also  Ibid.  Anhang  9  :  quidam 
fratres  K,  C,  R,  K,  E,  M,  B,  et  coheredes  illorum  intcrpellati  pro 
decimatione  hereditatis  sue.  Bej-er  Urkb.  119  :  Terra  AVolfgrammi 
et  Ruodiconis  et  consanguineorum  ipsorum  .  .  .  et  silvam  com- 
muuem  S.  Goaris  que  ad  ipsum  monasterium  pertinet  et  aliorum  co- 
heredum  ...  ad  terram  Hildimuodi  et  Waltarii  et  eorum  heredum. 
Ibid.  640  :  Ilcnricus  de  Tris  cum  filiis,  cum  ceteris  ejusdem  ville 
coheredibus  allodium  suum  quod  commune  habuerunt  contulerunt. 
Then  read  Fulda  Cod.  366  :  isti  habent  hereditatem  in  Dienenheim. 
Hruodpraht  (Comes)  and  twenty-two  other  persons  are  mentioned 
as  holders  of  the  inheritance,  and  coheu's  therein. 

Note  80.  — Page  32. 

Cod.  S.  Galli  439  :  inter  nos  et  Rihwinum  et  coheredes  ejus  fuit 
contentio  in  loco,  qui  dicitur  Scppenwauc  ;  quapropter  illuc  illuc 
venit  Iluodalrihns  comes  et  prepositus  noster  Ilartmuotus  et  advo- 
catus  Ruodpertus  necnon  et  Rihwinus  et  coheredes  ejus.  Et  jactatis 
inter  se  causis  conplacuitRihwino  et  Otgero  atque  Geroloo  fratribus 
necnon  ceteris  coherodil)us,  ut  aliquid  nobis  de  sua  proprietate 
donarent,  quod  et  fecerunt,  ita  ut  a  nobis  pagalium  firmitatis  acci- 
perent;  ea  videlicet  ratione,  ut  nos  supra  nominatum  locum,  quali- 
ter tunc  per  denotata  signa  segrcgatus  est,  securiter  nos  haberemus, 
nee  ullus  incidenti  vel  extirpandi  infra  denotata  signa  habeat  po- 


NOTES  AND  REFERENCES.  185 

testatem.  Et  similiter  Rihwinus  et  coberedes  ejus  suas  portiones 
contra  ipsum  locum  per  se  baboant  cxcepto  ut  pascua  couiiuuuia  in 
agris  babeamus. 

Note  81.— Page  32. 

Hist.  Frising.  I.  p.  49  :  dum  erga  eodem  loco  conexae  arvac 
ducali  pascua  non  sufHccrant ;  appelivi  locum  ad  proprios  beredcs, 
quo  vocatur  Ericbinga,  et  il)idem  [)ro  necessitate  domos  construxi, 
quia  antca  jam  temporibus  plurimis  inculta  atque  deserta  remansit, 
omnis  autcm  possessores  bujus  loci  prum[)tis  viribus  donantes  atque 
tradentcs  .  .  .  Tassilo  Dux  IJajoarorum  quicquid  ad  Fcringas 
pertinebat  pariter  ipsis  consentientibus  Alfrid  cum  fratribus  suis  et 
participibus  eorum  atque  consortiis,  reliquas  autem  partes  quicquid 
ad  genealogiam  quae  vocatur  Fagana  pertinebat,  tradiderunt  ipsi, 
id  sunt  Ragino,  Anulo,  Wetti,  Vurmhart,  et  cuncti  participes 
eorum,  donantes  atque  transfundentes  seu  firmitatem  secundum 
jus  Bajoarorum  facientes,  ut  ipsaque  bujus  loci,  id  est  Ericbinga, 
fines  utrorumque  genealogiarum  sine  fraude  ditionibus  beatae  prae- 
dictae  Dei  Genetricis  Mariae  consistere  in  perpetuum  firma  perma- 
ncat.  The  land  alienated  appears  to  have  been  the  undivided 
inheritance  of  two  groups  of  heirs, — the  members  of  the  ducal 
family,  the  Agilofingi,  and  the  members  of  the  Fagana  family. 
These  families  are  mentioned  in  Lex  Baiw.  Tit.  II.  Cap.  XX. 

Note  82.— Page  32. 

See  Reg.  Hist.  Westf.  XX,  and  Beyer  Urkb.  Nacblese  I.  No.  3  : 
quod  contra  allodiones  meos  reccpi  totum  ad  integrum  dono  atque 
trado,  terris  silvis,  etc.,  quantum  cuiKjut'  uiihi  obvenit.  The  heirs 
in  an  undivided  inheritance  are  usually  called  cnhcredcs  (see 
Notes  79,  80,  81) ;  or  else  they  are  called  consortes  (see  Note  81). 
Alsat.  Dipl.  IX  :  quicquid  nos  de  Animgo  seu  consortes  ipsius, 
vel  de  quibascunKjue  hominibus  comparavimus.  Cod.  S.  Galli 
155  :  quiccfuid  in  pago  Durgaucnse  genitor  meus  a  consortibus 
suis  in  partem  visus  fuit  accepisse  et  ille  postea  suis  dividenda 
dimisit  heredibus.  Ibid.  199  :  pratum  quod  cum  consortibus  meis 
adhuc  in  commune  visa  sum  possidcre,  reliqua  omnia  que  in  pre- 
dicta   villa    niilii    in    hercditate    succedunt   volo   esse    concessum. 


186  EARLY  HISTORY  OF  LAXD-HOLDING. 

Lauresham  Cod.  X :  rubo  per  Agilolfum  et  suos  consortes  pro 
signo  incisus. 

The  word  socii  occurs  instead  of  the  word  consortes  in  Fulda  Cod. 
1G5  :  traditio  Waltoni  et  soeiorum.  Fifteen  persons  are  mentioned 
as  donors  of  a  certain  undivided  appropriation :  capturam  que  de 
villa  B.  capta  est  et  haec  sunt  nomina  locorum  quibus  ilia  per 
gyrum  determinatur.  In  Ibid.  471,  fourteen  persons  unite  in  selling 
a  captura.  They  receive  payment  severally.  A  claim  is  afterwards 
put  in  b}'  two  other  persons,  that  a  portion  {portiunculd)  of  the 
property  belonged  to  them.  They  gave  up  their  claim  upon  the 
receipt  of  the  following  articles  :  duos  bovcs  et  duo  pallia,  lanea  et 
linca,  duos  gladios.  The}'  then  declared  :  quod  ulterius  in  ilia 
captura  nullam  communionem  habeant.  The  word  communio  is 
used  here,  as  elsewhere,  to  describe  a  right  in  undivided  land,  a 
right  to  a  portion  of  it,  or,  the  land  remaining  undivided,  a  right 
of  enjoyment  in  it.  Cf.  Note  72.  The  word  potestas  is  often  used 
instead  of  the  word  communio.  See,  for  example,  Cod.  S.  Galli 
514  :  et  jam  dicti  fratres  omnem  potestatem,  quam  habuerunt  in 
Goldahun  marcha  et  in  eadem  silva  ad  monasterium  Sancti  Galli 
vcndiderunt,  et  xxx  solidos  pro  pretio  acceperunt. 

"When,  in  the  early  time,  a  group  of  kinsmen  took  possession 
of  a  tract  of  land,  every  individual  member  of  the  group  had  a 
potestas  or  communio  in  the  land,  — a  right  to  appropriate  as  much 
as  he  wanted  of  it,  or  to  use  and  enjo}'  it  without  stint.  But  as 
time  went  on  it  became  necessary  to  define  the  amount  of  land 
which  the  individual  might  appropriate,  or,  if  the  land  remained 
undivided,  to  define  rights  of  enjoj-ment.  A  right  of  appropriation 
being  defined,  it  was  held  as  property.  It  was  transmitted  from 
father  to  sons,  and  it  was  alienated.  Rights  of  enjoyment  in  undi- 
vided lands  were  held  in  the  same  way.  They  were  hereditary  and 
alienable  rights.  But  we  shall  speak  of  this  matter  at  length 
prcscntl}'. 

Note  83.  — Page  32. 

The  passage  is  given  in  Note  72.  In  Notes  73-78,  and  in  Note 
82,  we  learned  how  inheritances  were  divided  among  the  heirs. 
The  heirs  are  called  parceners  (participes)  in  the  passage  cited 
from  Hist.  Frisins;.  in  Note  82.     Divisions  of  land  anions;  kinsmen 


NOTES  AND  REFERENCES.  187 

are   described  in  Lex  "NVisig.  X.   Tit.   I.     See  passages  cited  in 
Note  33. 

Note  84. —  Page  32. 

Liutprand  LXXIII :  Si  infans  dum  intra  aetatem  est,  res  suas 
cum  fratribus,  aut  cum  parentibus  suis  dividere  voluerit,  aut  si  ipsi 
cum  ipso  infante  dividere  voluerint,  faciant  ludici  notitiam  ;  et  ipse 
Index  faciat  venire  parentes  ipsius  propinquos,  ut  una  cum  ipsis, 
aut  per  se,  aut  per  niissum  suuin  bonam  i)ersonam  Deum  timentem 
res  ipsas  dividat,  sic  tamen,  ut  omni  tempore  sortes  stare  debeant, 
et  adaequatio  percurrat. 

Formula.  Petre  te  appellat  Martinus,  quod  tu  tenes  sibi  malo 
ordine  terram  in  tali  loco.  lUa  terra  dico  esse  mea,  quia  quando  tu 
eras  infra  aetatem,  voliiisti  dividere  mecum,  et  Comes  divisit  ipsam 
terram,  aut  per  se,  aut  per  Missum  suum,  et  tui  parentes  fuerunt : 
Aut  probet,  quod  sic  fuisset  facta  divisio  ;  aut  perdat. 

Note  85.  — Page  32. 
Formula  CXXVII.     See  Note  74. 

NoTi^  86.  — Page  33. 
Beyer  Urkb.  Nachlese  I.  No.  3.     Cited  in  Note  82. 

Note  87.  — Page  33. 
Cod.  S.  Gain  480.     Cited  in  Note  79. 

Note  88.  — Page  33. 

This  text  of  Lex  Salica,  De  alodis,  is  first  found  in  the  "  Origi- 
num  ac  Germanorum  Anti(iuitatum  Libri  "  of  V>.  J.  Ilerold  (Basi- 
leae,  1555,  folio).  It  is  probabh"  the  text  of  a  MS.  once  preserved 
at  Fulda,  but  now  lost.  It  is  a  simple,  logical  amplification  of  the 
ordinary  texts.  It  is  safe,  therefore,  for  us  to  use  it.  If  it  wore 
inconsistent  with  the  ordinary  texts,  if  it  were  in  any  sense  con- 
tradictory of  them,  we  could  not  use  it.    It  will  be  remembered  that 


188  EARLY  HISTORY  OF  LAND-HOLDING. 

"we  possess  no  MS.  for  the  Lex  Frisiouiim  ;  tliat  the  citations  which 
■we  use  are  from  the  Editio  I'rinecps  of  Ilerokl.  The  text  of  the 
De  alodis  which  we  liave  cited  has,  therefore,  precisel}'  the  same 
authority  that  a  passage  of  Lex  Fris.  has  :  no  more,  no  less. 

The  phrase  nepotes  ant  pronepotes  should  be  noted.  The  division 
was  supposed  to  be  made  between  grandsons  o?-  great-grandsons. 
Can  we  infer,  therefore,  that  this  text  of  the  De  alodis  antedates 
the  introduction  of  the  principle  of  representation  ?  Cf.  Formula 
CXXXIV  (in  Note  155).  It  is  hardly  safe  to  put  so  much  stress 
upon  the  word  aid,  it  is  so  constantly  used  for  et  in  our  early 
records. 

Note  89.  —  Page  35. 

See  Joshua  xviii.  There  remained  among  the  children  of  Israel 
seven  tribes,  which  had  not  yet  received  their  inheritance.  The 
land  was  accordingly  divided  into  seven  parts,  one  for  each  tribe. 
Joshua  then  cast  lots,  and  divided  the  land  unto  the  cliildren  of 
Israel  according  to  their  divisions  ;  according  to  their  tribes  and 
according  to  the  families  within  the  tribes.  Ibid,  xix :  The  sec- 
ond lot  came  forth  for  the  tribe  of  the  children  of  Simeon 
according  to  their  families :  and  their  inheritance  was  within  that 
of  the  children  of  Judah.  See  also  Numbers  xxxvi :  The  Lord 
commanded  that  the  land  should  be  given  for  an  inheritance  b}'  lot 
to  the  children  of  Israel,  and  the  inheritance  of  Zelophehad  went 
to  his  daughters.  See  also  Chronicles  vi.  63,  where  the  land  is 
given  "  by  lot  throughout  their  families." 

We  do  not  suppose  that  the  land  was  distributed  in  this  manner 
among  the  German  clans,  but  within  the  limits  of  the  clan  and 
family,  distributions  were  made  upon  this  principle,  without  doubt. 
Iveference  is  made  to  per  stirpes  divisions  in  the  Ilerold  text  of  Lex 
Salica,  De  alodis.  See  Note  88.  Divisions  among  brothers  were 
made  by  lot.  See,  for  example.  Cod.  Patav.  I.  i.xii :  quod  mihi 
pater  mens  nioriens  dereliquid  et  quod  mihi  sortie  accedit  erga  fra- 
tres  meos  ;  id  est  in  domibus,  mancipiis,  campis,  pratis,  silvis,  etc. 
Divisions  among  brothers  were  made  by  lot :  why  should  divisions 
among  grandsons  and  groat-grandsons  be  made  upon  an}'  different 
principle?  We  see,  in  Liutprand  LXIX,  that  divisions  among 
grandsons  were  made  by  lot.     See  the  passage  in  Note   79.     In 


NOTES  AND  REFERENCES.  189 

Liutprand  LXXIII  (in  Note  84)  we  see  that  divisions  between  kins- 
men (parentes)  were  made  by  lot. 

Wc  read  in  Kotliar  CLIII :  Omnis  parentela  usque  in  septimum 
genuculuin  numeretur,  ut  parens  parenti  per  gradum  et  parentelam 
heres  succedat,  sic  tamen  ut  ille  qui  suceedere  vult,  nominatini  unus- 
cujusque  nomina  parentum  suoruin  antecessorum  dicat.  It  is  a 
fact  beyond  question  that  the  knowledge  of  genealogical  rela- 
tionships was  as  careful!}'  preserved  among  the  Germans  as 
among  other  people  in  early  times.  How  is  this  to  be  explained, 
unless  the  knowledge  was  useful  in  some  way?  The  hypothesis  sug- 
gests itself;  that  the  knowledge  of  genealogical  relationships  was 
preserved  as  a  means  of  determining  rights  of  property  by  inher- 
itance ;  that  the  knowledge  of  relationships  was  preserved  for  the 
same  reason  that  title  deeds  are  preserved  among  us.  If  this  is  so, 
it  is  possible  tliat  ancestor  worship  was  introduced  as  an  aid  to  the 
memory  ;  ancestors  being  so  soon  forgotten  if  not  repeatedl}-  re- 
membered. We  can  imagine  the  house-father  saying  to  his  children  : 
Let  us  institute  a  festival  in  honor  of  our  progenitor  in  order  that 
we  ma}-  not  forget  him :  for  we  may  some  day  lose  our  inheritance 
by  forgetting  him.     But  all  this  is  mere  hypothesis. 

Note  90.  — Page  35. 

Lex  Burg.  Tit.  LXXVIII :  De  hereditatum  successione  adten- 
tius  pertractantes,  statuhuus  ut  si  pater  cum  filiis  sortem  suam 
diviserit  .  .  .  Cf.  Liutprand  LXXIII,  in  Note  84,  and  Ibid. 
LXIX,  in  Note  79  :  aliae  vero  res,  quae  divisae  fuerint  inter  fra- 
tres  sen  nepotes,  vel  ubi  mensura  tracta  est,  sorte  stante  adaequen- 
tur.  Inheritances,  being  distributed  by  lot,  were  very  properly  called 
sortes.  So  in  Cassiodorus,  Varia  VIII.  26  :  quae  necessitas  ad  in- 
justa  compellat,  cum  vos  et  sortes  alant  propriae,  et  munera  nostra, 
domino  adjuvante  ditificent? 

Note  91.  — Page  35. 

See  Formula  CXXVII  in  Note  74.  It  is  from  the  collection  of 
Marculf  (I.  20),  who  lived  in  the  time  of  Landeric,  Archl)i,shop  of 
Paris,  in  the  second  half  of  the  seventh  century.  The  shareholders 
in  the  alod  were  consortes  ;  the  alod  was  their  sors.     Then  see  pas- 


I'JO  EARLY  HISTORY  OF  LAND-HOLDING. 

sages  cited  in  Notes  79,  82,  and  90.     The  phrase  terra  sortis  titulo 
acquisita  occurs  in  Lex  Burg.  Tit.  I.  1. 

Note  92.  — Page  36. 

We  have  already  cited  Cod.  S.  Galli  199  :  pratum  carrorum 
quinque,  quod  cum  consortibus  meis  adhuc  in  commune  visa  sum 
possidere.  Cf.  Hist.  Frising.  DCCCLXXVI :  de  pratis  carradas 
XXX,  except©  quod  commune  est  cum  aliis.  So  in  Ibid. 
CCCXLVIII :  territorium  jurnales  xxx,  de  pratis  carradas  l,  ct  in 
alio  loco  pratas  communes,  sicut  alii  coheredes  habent. 

Note  93.  — Page  36. 

Formula  CCXXXIX  :  dedi  eidem  sponsae  meae  futuraeque  uxori 
dotis  nomine  curtcm  sepe  cinctam  et  in  eadem  marcha  de  arvea 
terra  juchos  c,  de  pratis  juchos  totidem,  de  silva  proprii  niei  juris 
juchos  CL,  communem  pascuam  coramunesque  silvarum  usus,  etc. 
Part  of  the  pasture  land  had  been  divided,  or  api)roi)riated.  The 
rest  remained  common.  It  was  held  in  undivided  shares,  which 
were,  it  appears,  alienable.  The  shares  of  the  common  land  were 
probably  proportioned  to  the  shares  of  land  held  in  severalty.  See 
Chart.  Silhiense,  p.  103  :  mansam  cum  castitiis  ;  de  prato  bunaria 
XVI.  de  terra  arabili  bunaria  clviii,  de  silva  grossa  bunaria  xvm 
ad  saginandos  porcos  xx,  de  silva  minuta  bunaria  li,  de  pastura 
communi  sulTicienter.  Cf.  the  passages  cited  from  Lex  Burg,  in 
Note  72  ;  also  Lacomblet  Urkb.  3  :  unum  modicum  curtile  cum 
agris  HI,  cum  waterscapis,  perviis,  communiis  paseuis  ;  et  dedi 
ei  potestatem  habere  in  silvam  que  dicitur  Sitroth.  Cod.  Trad. 
Lunaelac  CV :  trado  atque  transfirmo  partes  duos  horeditatis 
meae  ...  in  omnibus  flrmabo,  cum  domibus,  cdificiis,  curtiferis, 
cum  terris  aral)ilis,  cum  campis,  pratis,  paseuis  communiis,  etc. 
Here  we  liaA-e  fm^ma  communin,  i.  e.  undivided  shares  of  a  com- 
mon pasture,  included  witliin  an  inheritance.  Two  thirds  of  these 
undivided  shares  of  common  pasture  are  alienated  to  the  Church 
of  St.  IMichacl  at  Lunaelac,  or  Mondsee. 

The  word  conpasnia  is  often  used  instead  of  the  phrase  pascua 
commuma.  See  Beyer  Urkb.  280.  Hist.  Frising.  MCCXXXI. 
Wirtemb.  Urkb.  CCCVII.     Gunthcr  Cod.  Dipl.  31.     In   Ibid.  59 


NOTES  AND  REFERENCES.  191 

we  have  communihus  pascuis  alienated  with  a  mansus :  qucndam 
mansura  ex  proprietatibus  cum  omnibus  appenditiis ;  vidcHcet 
vineis,  areis,  agris,  communibus  paseuis.  The  communia  pascua 
belonged  to  the  owner  of  the  mansus.  We  have  conpascua  again 
in  Orig.  Nassoic.  LXVIII.  These  common  pastures  are  not, 
strict!}'  speaking,  common  pastures.  They  are  not  the  property 
of  the  community.  The}'  are  the  undivided  property  of  neigh- 
boring hind-owners.  It  is  property  held  in  common,  not  connnon 
property.  AVith  unity  of  possession  we  have  diversity  of  title. 
The  undivided  sliares  arc  hereditar}',  divisible,  and  even  aUenable, 
—  alienable  as  wholes  or  in  fractions.  "We  must  not  infer  com- 
munism from  the  word  communis.  Many  writers  have  done  this. 
The}'  have  fallen,  consequently,  into  very  serious  errors. 

Note  94.  — Page  36. 

Lex  Burg.  Add.  I.  Tit.  I.  6  :  sylvarum,  montium,  et  pascuorum, 
unicuique  pro  rata  suppetit  esse  communionem.  Note  the  force 
of  the  words  pro  rata.  The  arable  land  of  an  inheritance  being 
divided,  the  rest  of  the  land  was  often  held  in  undivided  shares 
proportioned  to  the  shares  of  land  held  in  severalty  :  secundum 
terrarum  modum  vel  possessionis  ratam.  See  passage  of  Lex 
Burg.  (Tit.  LXVII)  cited  in  Note  72.  When  a  man  alienated  his 
severalty  lands  he  alienated  with  them  proportionate  but  undi- 
vided shares  in  all  the  common  lands.  See,  for  example,  Westf. 
Urkb.  3  :  mansos  duos  cum  terris  cultis  et  incultis  et  silvis  com- 
munibus ad  COS  mansos  pertinentibus.  In  Cod.  Trad.  Lunaelac 
LXIV,  an  estate  is  alienated  including  silvis  communiis.  In  Ibid. 
CXXX  a  sih-a  communia  is  included  under  res  suas  proprias. 
Cod.  S.  Galli  4GG  :  pars  silve  quae  in  ipsa  marcha  ad  meam  perti- 
net  proprietatem.  So  in  No.  531  :  de  coramuni  silva  quantum  ad 
portionem  nostram  pertinet  .  .  .  de  silva  juxta  estimationem  nos- 
tre  portionem  incommuni  silve.  Lauresham  Cod.  JNOLMDCXCYI : 
portionem  suam  de  silva  inter  ambas  marcas.  Ibid.  MCCXXX^'I : 
de  ilia  silva  communi,  quantum  jure  hereditario  ad  me  pertinere 
videtur.  MM]MDCCXVI :  de  silva  portionem  suam,  item  sextam 
partem,  JVI^IMDCCXLVI :  de  silva  quod  ad  sc  pcrtinuit.  Trad. 
Wiz.  LXIX  :  tres  partes  de  ilia  marca  silvatica  portione  sua. 
Ibid.  CC :  sortes  mi,  et  silva  in  communiis  que  [)Ossunt  porci  sagi- 


192  EARLY  HISTORY  OF  LAXD-HOLDING. 

nari  niimcro  cc  si  fructus  evcnerit.  In  Hist.  Frising.  DCCCLXI 
a  man  alienates  a  silcam  commmiem  cum  ceteris  viris.  Cf.  DC'CCCIX  : 
maxinuun  partem  de  silva  optima  communem  cum  ceteris  nobilibus 
viris.  Brev.  Not.  Salzb.  XV.  2  :  silvam  cum  participibus  suis. 
Then  read  Formula  CCCCII :  silviculam  propriam  vcl  cum  suis 
coheredil)us  eonnnunem. 

It  is  e\ident  from  these  examples,  and  man}'  more  which  might 
be  cited,  tliat  the  silva  communis  was  simply  undivided  propcrt}',  or 
I^roperty  held  in  undivided  shares.  The  shares  of  it  were  held  as 
private  propert}'.  They  were  hereditar}-,  divisible,  and  even  alien- 
able. The  silva  communis  did  not  belong  to  the  communitj'.  It 
belonged  to  the  members  of  it.  Among  them  there  was  unity  of 
possession,  but  diversity  of  title. 

Note  95.  — Page  36. 
Lex  Rip.  Tit.  LX.  2. 

Note  96.  — Page  36. 

Communia  are  described  as  private  property,  as  hereditary  and 
alienable,  in  Formulae  CXVIII,  CLXXII  (observe  how  the  com- 
mnnia  are  included  under  the  head  of  possessiones  vel  dominationes)^ 
CC  (here  they  are  alienated  per  festucam^  included  within  a  pos- 
sessio  vel  domination  under  Q.jtis  vel  dojuinatio) ,  CCII  (here  they  have 
been  acquired  de  alode,  de  comparator  seu  de  adtracto,  and  are  in- 
cluded under  sl  jus  et  dominatio)  ^  CCCI,  CCCXLVI,  CCCLXVII : 
nsus  saltuum  communium  (described  as  private  property,  in  the 
same  category  with  mancipiis,  Jumentis,  pecorihus^  curtilibus  et 
hobis  possessis).  See,  lastly,  Formula  CCCCII.  Then  Kemble's 
Codex  LXVI,  XCVI,  CVIII,  CXC,  CCLXXVI :  connnunionem 
marisci  quae  ad  illam  villam  antiquitus  cum  recto  pertinebat.  See 
also  CCLXXXVIII,  CCCCXXXII.  Then  Chart.  SUhiense,  p. 
61  :  where  a  man  alienates  two  thirds  of  his  estate  including  com- 
muniis.  Cf.  p.  (32,  where  a  whole  estate  is  alienated  including  com- 
muniis.  Then  read  Lex  Burg.  Add.  I.  G  again  (given  in  Note 
72).  See  also  Chart.  Sithiense,  p.  117  :  curtilem,  id  est  cum  casti- 
ciis  ;  et,  inter  ipsum  curtilem  et  pratum  ac  tcrram  arabilem,  buna- 
ria  XL  ;  etde  silva  Inniariax,  una  cum  ipsorum  locorum  communiis. 


NOTES   AND   REFERENCES.  193 

The  communia  were  rights  in  common  lands  sup[)lc'mentar3'  to 
property  held  in  severalty.  Kights  in  severult}-  lands  being  alien- 
ated, communia  went  with  them,  —  the  communia  ipsorum  loco- 
rum. 

In  Lacomblet  Urkb.  G,  a  comprehensio  in  silva  is  alienated  and 
with  it  a  commnnio  in  eandeni  silcam.  In  Ibid.  3,  the  \)\xYi\S(i  potestas 
in  sih-a  is  used  instead  of  co;«;?2«m«o  in  silra.  In  No.  5  we  have 
the  phrase  dominatio  in  silvam.  Cf.  No.  8  :  portioncm  heredilatis 
mee  ...  in  terra  aratoria,  sen  in  pratis,  et  in  pascuis,  et  in  oninera 
communionem  mecum  in  silvam.  Hist.  Frising.  DCCLXXXIII : 
dedit  episcopus  ...  in  silva  communem  usum  cum  aliis.  Ibid. 
MXXX :  communionem  in  silvis,  etiam  hi  marchis.  Ibid. 
MCXCVII :  praedium  cum  privatis  et  communibus  iisibus  lega- 
liter  ad  cundem  locum  pertinentibus.  Brev.  Not.  Salzb.  VII : 
portioncm  venationis  communem  cum  cohaeredibus  suis.  Be3'er 
Urkb.  400 :  coheres  est  in  communione  que  pertinet  ad  Tris. 
Wirtemb,  Urkb.  XXXVII :  utilitatibus,  quam  in  ipsam  supra- 
dictam  marcam  et  ad  ipsam  supradictam  rem  legitime  pertinet. 
Ibid.  LXXVIII :  commoditatibus.  Osnabrk.  Gesch.  XXVI :  utili- 
tatibus ad  eadem  loca  pertinentibus.  Cod.  S.  Galli  514  :  potesta- 
tem  quam  habuerunt  in  marcha ;  680 :  usum  habuimus  qualem 
unusquisque  liber  homo  de  sua  proprietate  \_note  tlris]  juste  et  lega- 
liter  debet  habere  in  campis,  pascuis,  silvis  lignorumque  suceis- 
sionibus,  atque  porcorum  pastu,  pratis,  viis,  aquis,  aquarumque 
decursibus,  piscationibus,  exitibus  et  reditibus.  See  also  Ibid. 
738,  740,  742  :  in  silva  usus  ad  focos  et  ad  sepes  et  ad  edificia 
quantimi  sufhccrent  ad  curtile.  Ibid.  No.  80G  :  quicquid  heredita- 
rio  jure  possidemus  .  .  .  agris,  pratis,  silvis,  omnibusque  usibus 
ad  ea  ccdeutibus.     See  also  No.  808. 

It  is  evident,  from  the  above  examples,  that  rights  of  enjoyment 
in  common  land  were  based  upon  rights  of  property  therein.  The 
common  land  was  simply  undivided  land,  in  which  two  or  more 
persons  owned  shares.  It  was  in  virtue  of  this  shareholding  that 
they  had  rights  of  enjoyment.  It  appears  that  these  rights  of  en- 
joyment wore  of  the  nature  of  real  property.  They  were  held  as 
real  property,  inherited,  divided,  and  alieuated. 

13 


194  EARLY   HISTORY   OF  LAXD-HOLDIXG. 

Note  97.  — Page  37. 
Wirteraberg.  Urkb.  LXIII,  or  Cod.  S.  Galli  199.     See  Note  92. 

Note  98.  —  Page  37. 

Trad.  Wiz.  CCLXXII.  Kemble's  Codex  CCXCII.  Cf.  Ibid. 
LXVI :  cominuna  pasturae  pro  oinni  geuere  animalium  omnibus 
seionis  sibi  et  boiniiiibus  suis  sive  tenentibus.  Ibid.  CVIII : 
unius  gregis  porcorum  pascuara  in  saltii  Andoredo.  See  Chartula- 
rium  Abbatbiae  de  Novo  Monasterii  (publisbed  by  tbe  Surtees 
Society,  Durham,  1878,8°),  p.  72:  eouimunem  pasturam  ad  iiii 
equos  domitos,  et  ad  x  boves  et  xxx  vaccas  cum  vitulis  earum  do- 
nee superenentur,  et  ad  quadringentas  oves  cum  agnis  earum. 
There  are  other  similar  passages  in  this  Cartulary  ;  ^vhich,  b}'  the 
wa}-,  has  been  accidentally  omitted  from  our  list  of  sources. 

In  addition  to  the  passages  cited  above,  two  passages  ma}'  be 
given  from  the  Visigothic  Law.  Lex  Wisig.  VIIL  Tit.  5,  2 : 
Si  inter  consortes  de  glandibus  fuerit  orta  contentio,  pro  eo  quod 
nnus  ab  alio  plures  porcos  habeat :  tunc  qui  minus  habuerit,  liceat 
ei  secundum  quod  tcrram  dividit,  porcos  ad  glandcm  in  portione 
sua  susciperc,  dummodo  acqualis  numcrus  ab  utraque  parte  ponatur. 
Et  postmodum  dccimas  dividant.     Sicut  et  terras  diviserunt. 

See  also  Ibid,  o  :  Si  in  pascua  grex  alienus  intraverit,  sive  ovium, 
sive  vaccarum,  hoc  quod  de  porcis  constitutum  est  praecipimus 
custodiri.  Consortes  vero  vel  hospites  nulli  calumniae  subiaceant : 
quia  illis  usum  herbarum,  quae  conclusae  non  fuerant,  constat  esse 
communem.  Qui  vero  sortem  suam  totam  forte  concluserit,  et 
alicna  pascua  absente  domino  invadit,  sine  pascuario  non  praesu- 
mat,  nisi  forte  dominus  pascuae  voluerit. 

It  is  evident  that  the  common  pasture  was  simply  the  undivided 
pasture ;  that  rights  of  enjo^-ment  were  unregulated,  or  else  pro- 
portioned to  undivided  shares. 

Note  99.  — Page  38. 

Lauresham  Cod.  MCCXXXVI.  Cod.  S.  Galli,  No.  531.  Westf. 
Urkb.  No.  3.     The  passages  were  cited  in  Note  94. 

A  share  of  the  common  forest  was  attached  to  ever}-  mansus  or 


NOTES  AND   REFERENCES.  195 

hnba  ;  so  that  if  a  man  owned  two  mansi  or  hubae,  he  owned  two 
shares  of  the  common  forest.  The  tenants  of  the  nidiisi  or  huhae 
had  rights  of  common  in  the  common  forest.  The  owners  or  lords 
of  the  hnbae  had  shares  of  the  connnon  forest :  their  tenants  had 
rights  of  connnon  in  it,  by  grunt  or  by  prescription.  AVc  may 
again  refer  the  reader  to  Mr.  Joshna  Williams's  "  Rights  of 
Common,"  and  to  Mr.  Charles  Elton's  "Law  of  Commons  and 
Waste  Lands." 

Through  the  early  period  the  common  forests  were  owned  by  a 
great  many  persons.  Some  owned  a  few  shares,  some  owned 
many ;  but  in  the  course  of  time  there  was  an  enormous  concentra- 
tion of  ownership,  and  a  substitution  of  tenanc}'  in  its  place.  The 
common  forest  came  to  be  the  property  of  one  or  more  great  lords, 
and  the  mass  of  the  people  had  merely  rights  of  common  therein. 
During  the  following  centuries,  however,  the  tenants  succeeded,  in 
many  places,  in  getting  rid  of  their  landlords.  In  the  mean  time 
the}'  had  grouped  themselves  in  corporations  ;  so  the  landlordship 
which  they  took  away  from  their  landlords  was  assumed,  not  by 
individuals  but  I)}'  corporations  of  individuals,  — b^'  communes,  or 
communities.  This  theory  differs  very  much  from  that  which  is 
commonly  held ;  but  we  recommend  it  to  the  reader  for  his  con- 
sideration. 

Note  100.  — Page  39. 
Hist.  Frising.  DCCCLXXVI.   Ibid.  DCCCXV.  Ibid.  DCCCCIX. 

Note  101.  — Page  40. 

The  possession  of  undivided  land  was  almost  the  first  bond  of 
union  between  the  allodial  land-owners.  There  was  no  other  in  the 
early  time,  except  the  bond  of  kinship  ;  and  even  the  bond  oi"  kin- 
ship was  very  loose  except  where  there  were  undivided  inheritances 
to  keep  the  kinsmen  together.  As  long  as  tlicre  was  plenty  of 
land,  and  cvci-y  man  could  take  as  much  of  it  as  he  wanted,  rights 
in  the  land  were  seldom  disputed,  and  seldom  brought  for  discus- 
sion before  the  assembly  of  land-owners.  In  the  course  of  time, 
however,  the  good  land  liecame  scarce.  Quarrels  arose  in  regard 
to  the  rights  of  j)i-op('rt\-  in  it.     Systematic  divisions  of  the  un- 


196  EARLY  HISTORY   OF  LAND-HOLDING. 

divided  lands  were  called  for.  These  divisions  were  usually  made 
by  tlie  assembly  of  land-owners.  But  in  regard  to  pasture  and 
forest  lands,  it  was  often  tliought  best  not  to  divide  them,  but  to 
have  rights  of  enjoyment  in  them  dclined.  Tlie  delhiitions  were 
seldom  permanent,  lu)\vever.  Disputes  continued  to  arise,  and 
these  disputes  were  settled  by  the  assembly  of  land-owners  ;  and 
when  the  right  of  the  individual  was  opposed  to  that  of  the  majority 
it  was  apt  to  be  annihilated.  Strangers  were  sometimes  admitted 
to  rights  in  the  common  land,  by  the  assembly.  In  this  waj-  the 
sovereign  control  over  the  common  land  came  to  be  vested  in  the 
communit}'  or  corporation,  rather  than  in  the  members.  It  is 
generally  true,  that  wherever  the  control  of  undivided  property  is 
vested  in  a  majority  of  the  shareholders,  rather  than  in  the  majority 
of  shares  as  represnted  by  their  owners,  the  property  becomes, 
sooner  or  later,  the  property  of  the  community  or  corporation. 
The  majority  vote  may  be  described  as  the  root  of  communism. 
Most  of  the  communism  which  the  world  has  seen  has  been  an  out- 
growth from  it. 

Note  102.  — Page  40. 

Take,  for  example,  the  ahnend  of  Switzerland.  AYas  it,  in  the 
earh'  time,  land  held  in  common,  — i.  e.  undivided  land,  held  in  un- 
divided shares,  —  or  was  it  land  which  belonged  to  an  association  or 
corporation  of  persons,  in  which  the  individual  had  merel}-  a  usu- 
fruct? No  careful  student  of  the  records  will  hesitate  in  conclud- 
ing, the  question  being  put  to  him  in  this  way,  that  the  almend  was 
undivided  land,  land  held  in  undivided  shares.  He  will  remem- 
ber perhaps  the  passage  of  Cod.  S.  Galli  680  (A.  D.  890)  :  talem 
usum  habuimus  qualem  unusquisque  liber  homo  de  sua  projjrietate 
\iiote  these  ioords~\  juste  et  Icgaliter  debet  habere  in  campis,  pascuis, 
silvis,  lignorunKiuc  succisioniljus  ntque  porcorum  pastu,  prulis,  viis, 
aquis,  aquarumque  decursibus,  piscationibus,  exitibus  et  reditibus. 
Sec  Notes  92-91,  9G-99.  The  student  will  remember  also  the  in- 
numerable documents  in  which  shares  of  the  undivided  and  com- 
mon land  are  described  as  hereditary,  divisible,  and  alienable. 
That  the  nature  of  the  almend  has  changed  in  the  course  of  the 
Middle  Ages,  that  at  the  present  time  the  ownership  of  it  is  vested 
rather  in  the  villages  and  communes  than  in  individuals,  is  to  be 


NOTES  AND   REFERENCES.  197 

granted,  of  course.  The  elumge  in  the  constitution  of  the  ahnend 
ma}-  be  explained  as  the  result  of  giving  the  control  of  the  almend 
to  the  majority  of  the  shareholders,  rather  than  to  the  majority  of 
shai'es  as  represented  b}-  their  holders. 

l>ut  this  is  not  the  only  explanation  of  the  present  constitution 
of  the  almend^  nor  perhaps  the  best.  The  almend  was,  in  many 
cases  the  property  of  one  or  two  great  lords  ;  but  it  was  occupied 
b}-  the  tenants  of  these  lords.  They  had  rights  of  common  in  it, 
b}-  grant  or  b}*  prescription.  The  tenants  then  formed  themselves 
into  corporations  or  communes,  and  succeeded  in  overthrowing  the 
lord  or  lords,  and  in  getting  possession  of  the  landlordship.  They 
then  emerge  with  rights  of  common  under  their  own  landlordship. 
Of  these  two  explanations  the  reader  may  take  whichever  he  pre- 
fers, or  both.  It  is  probable  that  the  histor}*  of  the  ahnend  has 
been  different  in  dilferent  cases.  See  remarks  and  citations  in 
Note  17. 

What  has  been  said  here  of  the  almend  refers  equally  well  to 
communal  lands  in  Belgium,  in  England,  and  elsewhere. 

Note  103.  — Page  41. 

Lauresham  Cod.  CCCLXXVII.  Cf.  Cod.  Morav.  CCCXXXVII : 
poilio  Reinokli  in  via  quam  vendebat.  "We  have  the  via  alicujus  in 
Lex  Baiw.  IX.  13,  In  Wirtemb,  Urkb,  XLIII  viis  arc  included 
under  the  head  of  omnes  res  meas.  Cf.  Ibid.  LXI.  See  Formulae 
CCXXXI,  C^CXXXIX.  Many  other  instances  might  be  cited.  It 
was  some  time  before  roads  and  wa3's  ceased  to  be  regarded  and 
described  as  undivided  propert}'.  They  were  held  in  undivided 
shares,  —  communiter  divisam,  as  the  phrase  was.  See  Lex  Burg. 
Add.  I.  Tit.  T.  1  :  Observandum  viam  publicam,  vel  inter  agros 
communiter  divisam,  nee  possideri,  nee  intercludi,  ncc  exartari 
posse. 

Note  104.  — Page  41, 

Lex  Burg.  Add.  I.  4  :  Viam  in  actum,  hoc  est,  ubi  carpenta  vel 
carra  ducuntur,  similiter  biennio  amitti,  et  adquiri  posse. 


198  EARLY  HISTORY   OF  LAND-IIOLDIXG. 

Note  105.  —  Page  42. 

Lex  Baiw.  IX.  13  :  Si  quis  viam  publicam,  ubi  Rex  vel  Dux 
egreditur,  vel  viam  aequalem  alicuiiis  [_note  the  force  of  this  word'] 
clauserit  contra  legem,  cum  duodecim  componat,  et  illam  sepem 
toUat.  Et  si  negare  voluerit,  cum  duodecim  sacrameutalibus  iuret. 
If  a  man  could  get  twelve  witnesses  to  swear  that  the  road  was  his, 
he  might  appropriate  it :  if  he  could  not  do  this,  he  paid  twelve 
solidi  to  the  owner,  the  king  or  duke,  or  any  one  else  {ciUquis)  who 
happened  to  be  the  owner. 

Lex  Baiw.  IX.  14  :  De  via  convicinali  vel  pastorali,  qui  earn 
alicui  contra  legem  clauserit,  cum  sex  solidis  componat  et  aperiat, 
vel  cum  sex  sacramentalibus  iuret.  Ibid.  15  :  De  semita  convici- 
nali, si  quis  earn  clausevit,  cum  tribus  solidis  componat,  aut  cum 
uno  sacramentali  juret. 

Note  lOG.  — Page  43. 

The  formula  aqvis  aquarumve  decursihus  occurs  in  almost  all  the 
descriptions  of  property  which  we  have,  of  the  early  period.  One 
example  will  be  suflicient,  —  Formula  CCXXXVI :  curtem  clau- 
sam  cum  ceteris  edificiis,  cum  terra  salice,  id  est  jurnales  tantos, 
prata  ad  carradas  tantes,  et  hobas  tantas,  cum  agris,  pratis,  silvis, 
pascuis,  aquis  aquarumve  decnrsibus,  ut  a  die  presente  habeas, 
teneas,  atque  possideas.  Cf.  Cod.  S.  Galli  G19  :  potestative  manu 
possidere  usque  in  medium  Ilreuum.  See  also  Hist.  Frising. 
DCCLXXXVII :  terminum  fluminis  pertinentem.  Cod.  Trad. 
Lunaelac  V :  donavimus  unam  aquam.  Fulda  Trad.  Cap.  o.  G9  : 
capturam  unam  et  duas  partes  fluminis  supra  et  infra.  Ibid.  Cap. 
42.  1  :  agrum  in  quo  fons  ebullit.  Ibid.  No.  215  :  pratum  unura 
et  fontem  in  eo  manentem.  Fulda  Cod.  410 :  talem  partem  in 
illo  fonte  ubi  nascetur  sal  qualis  mihi  contingit  in  eodem  fonte. 
Lauresliam  Cod.  MMCXVII :  fontem  i  in  Sigulfingheim.  Cf. 
Alsat.  l)ii)l.  LXIX.  Formula  CC.  Kemble's  Codex  XXVII: 
fontanis  vel  mariscum.  Beyer  Urkb.  22  :  de  ilia  fontana,  quantum 
ad  nos  pertinet.  Ibid.  4G5  (b)  :  xx  mansos  cum  fontibus  inde 
nianentibus.  Cf.  Lib.  Eli.  II.  21  :  unum  gurgitem  quern  Ean- 
flcad  moriens  partim  dimisit  Wine,  et  partim  emit  ipse  a  cognatis 
suis. 


NOTES  AND  REFERENCES.  199 

Note  107.  — Page  43. 

Lex  Burg.  Add.  I.  Tit.  I.  3  :  Aquae  cursum  et  adquiri  et  amitti 
biennio  constat. 

Note  108.  — Page  4.3. 

Lex  Baiw.  IX.  16  :  De  fonte.  1.  Si  fontem  quacumque  immun- 
ditia  coinquinaverit  vel  raaculaverit,  emundet,  cum  prius,  ut  nulla 
sit  suspicio  coinquinationis,  et  cura  sex  solidis  componat,  aut  cum 
sex  sacramentalibus  iuret.  2.  Si  autem  plurimorum  in  vicinia 
putens  fuerit,  compositione  inter  se  multentur.  3.  lUe  vero  pu- 
teura  in  pristinum  restituat  gi-adum.  Another  stage  in  tlie  liistory 
of  wells  is  described  in  Rothar  CCCXI :  Si  animal  in  puteo  alterius 
ceciderit,  et  mortuum  aut  debilitatum  fuerit,  non  requiratur,  cujus 
putens  est ;  quia  putei  aqua  communis  omnium  utilitatibus  inveni- 
tur  esse.  Here  the  well  is  supposed  to  belong  to  somebody,  but 
the  water  is  free  to  all.  The  individual  was  no  longer  allovyed  to 
hold  an  exclusive  right  to  the  water  of  his  well.  He  must  allow 
others  to  partake  of  it. 

Note  109.  — Page  44. 

Lauresham  Cod.  DCCCCXLVH.  See  also  Cod.  S.  Galli  731  : 
dimidium  curtem  cum  nrboribus  positum  et  dimidium  domum. 
Hist.  Frising.  CCCLXXVII :  qnicquid  ipso  die  propriae  hereditatis 
se  habere  videbatur  totum  tradidit  .  .  .  hoc  est  curtem  medium  et 
domum  mcdiam  cum  alia  edificia,  tota  media.  Brev.  Not.  Salzb. 
XVII.  3  :  Gotschalh  dcdit  mcdietatem  domus  suae  et  omnia  ad 
earn  pertinentia.  So  in  Mon.  Weihensteph.  p.  471  :  dimidiam 
domum  suam  delegavit.  Lastly,  sec  Miinst.  Bcitr.  III.  G  :  curtim 
in  unum  congregare  commutatione.  When  several  persons  held  a 
house  in  shares,  the  shares  could  be  united  again  by  means  of  pur- 
chases and  exchanges.  One  of  the  shareholders  bought  out  the 
others.  Then  he  had  the  house  to  himself.  Unless  this  was  done, 
the  house  would  come  to  be  the  undivided  property  of  a  great  many 
persons,  representing  the  original  proprietor.  We  have  already 
cited  the  passage  of  the  Lombard  Law,  Rothar  CLXVII :  si  fra- 
tres  post  mortem  patris  in  casa  comniuni  re manseriiit  .  .  .     Doubt- 


200  EARLY  HISTORY   OF  LAXD-HOLDING. 

less  grandsons  and  even  great-grandsons  sometimes  remained 
together  under  tlie  same  roof,  forming  a  house  communit}'.  The 
house  community  arises  from  the  multiplication  of  heirs  within 
the  house  of  an  ancestor. 

House  comunmities  of  this  kind  may  be  seen  in  the  Slavonic 
countries,  especially  in  Slavonia,  Croatia,  Dalmatia,  Servia,  and 
Montenegro.  The}-  may  be  seen  also  in  India  and  in  other  coun- 
tries. They  are,  in  all  cases  we  believe,  assemblages  of  heirs 
holding  an  undivided  inheritance.  The  inheritiyice  (the  ancestral 
homestead)  being  in  its  nature  indivisible,  the  heirs  arc  bound 
together  by  it  into  a  unit.  They  separate  only  when  their  inheri- 
tance will  no  longer  contain  them. 

Note  110.  —  Page  44. 

Salem  Eeg.  p.  327.  See  also  Wirtemb.  Urkb.  XXXVIH: 
mediam  partem  de  uuo  molendino.  Ibid.  XLVII.  Lauresham 
Cod.  DXVI :  tertiam  partem  de  uno  molino.  Ibid.  MMCXXIV : 
dimidium  molendinum.  Cod.  S.  Galli  127:  mediam  partem  de 
uno  molendino.  Miinst.  Beitr.  I.  No.  VI :  ego  Goscalcus,  cum 
pleno  consensu  uxoris  me,  et  gcrmani  mei,  ejusque  uxoris  et  eorum 
natoruni ;  item  et  sororis  mee,  aliorumque  tani  hcredum  quara  co- 
hereduni  meonim  libero  arbitrio  vendidisse  molendinum  cum  omni- 
bus suis  emolumentis. 

In  this  connection  the  following  passage  of  the  Chart.  Sithiense 
is  interesting:  p.  67:  quod  mirabile  nostris  hactenus  monstratur 
temporibus  [A.  D.  800?]  molendinum  fecit  [Orlandus,  abbas] 
volvere  aquis  contra  montem  currentibus  ;  constituitque  ut  nullus 
hominum  molendinum  extra  locum  jam  dictum  [villa  Arecas,  Ar- 
ques?]  construere  presumeret :  quod  ad  utilitatem  monasterii  Sithiu 
ad  tempus  fuit  couservatum.  This  is  a  very  early  case  of  cop}'- 
right ! 

Note  111.  —  Page  44. 

Fulda  Cod.  68.  Hist.  Frising.  CXXIX.  Capit.  Wormat.  A.  D. 
829.  See  also  Capit.,  Additio  Tertia  LI  (Corp.  Jur.  Germ.  II.  p. 
805) :  perlatum  ad  nos  est  quod  inter  heredes  ecclesiae  in  rebus 
propriis  constitutae  dividantur,   et  tanta  per  eandem   divisionem 


NOTES  AND  REFERENCES.  201 

simultas  oriatur,  ut  unius  altaris  quatuor  partes  fiant,  et  singulae 
partes  singulos  habeant  presb3'teros  :  quod  sine  discordia  et  simul- 
tate  nullo  modo  geri  potest.  Unde  nobis  visum  est  quod  hujusce- 
niodi  ecclesiae  inter  heredes  dividi  nou  debeant.  FA  si  in 
contentionem  veneriut  .  .  .  References  to  shares  of  churches 
owned  b}'  individuals  are  very  coramon. 

Alsat.  Dipl.  CCXLVIII :  quarta  pars  ecclesiae.  Formula 
CCCXIV :  partem  in  basilica.  Lacomblet  Urkb.  289  :  oetuvaui 
partem  ecclesiae.  Ritz  Urk.  5 :  portio  mea  do  ilia  basilica. 
Fulda  Cod.  IGl  :  partem  illius  ecclesiae  quam  pater  noster  nobis 
in  hercditatem  dereliquit.  Lauresham  Cod.  LXXXIII :  duas  par- 
tes basilicae.  Ibid.  MDCCCCLXV  :  portionem  meam  de  basilica. 
So  also  in  MDCCCCLXVI,  MDCCCCLXVII,  MDCCCCLXIX- 
MDCCCCLXXII,  and  MDCCCCLXXIV.  In  these  documents 
ditferent  persons  are  mentioned  as  shareholders  in  the  same  church  ; 
that  of  St.  Lanpert  in  Mainz.  See  also  Trad.  AViz.  CLXXVIII. 
Cod.  S.  Gain  13 :  de  ilia  ecclesia,  dc  v  partibus  duas  partes. 
Ibid.  108  :  de  ilia  ecclesia  portionem,  quicquid  mihi  legitime  obtin- 
git.  Ibid.  155  :  partem  ecclesie,  vel  quicquid  in  predicto  pago 
genitor  mens  a  consortibus  suis  in  partem  visus  fuit  accepisse  et 
ille  postea  suis  dividenda  dimisit  heredibus.  Ibid.  185  :  partem 
basilice.  See  also  Hist.  Prising.  CDXIV  :  tunc  interrogavit  Epis- 
copus  Fridupertum  et  coheredes  sui,  si  illorum  portionem,  quod  eis 
contigisset  in  ipsa  Ecclesia  donai-e  voluissent.  Num.  CDLXXIl  is 
also  interesting,  and  DCCXXXI.  Wirtemb.  Urkb.  CXXXVI, 
CLIV,  CCLVII.  Lastly,  see  Reg.  Hist.  Wcstf.  XX,  where  we 
have  successores  alodii  in  a  church. 

Note  112.  —  Page  45. 

Hist.  Frising.  CCCLXVII :  mancipias  ii  et  iii  um  dimidium. 
Ibid.  CDIII :  unum  mancipium  et  alium  dimidium,  qaem  commu- 
ncm  liabiiit  ciun  fratrc  suo  nomine  Erlolf.  Fulda  Cod.  445  :  unius 
pucri  communis  duao  partes,  nomine  Ruadhelm.  Ibid.  573  :  man- 
cipia  quorum  quacdam  mea,  quaedam  vero  meorum  propinquo- 
rum  et  mea  communia,  quorum  haec  sunt  nomina.  Cf.  Trad. 
Corb.  383  :  tradidit  mansum  cum  mcdietate  familie. 


202  EARLY  HISTORY  OF  LAND-HOLDINa. 


Note  113.— Page  45. 

Brcv.  Not.  Salzb.  VII.  3  :  Madelhelnuis  quidem  vir  nobilis  cum 
caeteris  rebus  suis  portioncm  venationis  suae  ad  istam  dei  eccle- 
siam  juxta  ripam,  quae  vocatur  Albina,  banc  esse  eommuncm  cum 
cohaeredibus  suis.  Cf.  Ibid.  VIII.  1  :  ilia  geucaloiria  supradicto- 
rinn  boiuinum  de  Albina.  AVc  have  bcre  a  clan  bolding  a  hunting 
ground  in  undivided  shares,  the  shares  being  hereditar}^  divisible, 
and  alienable.  Venationes  are  frequently  referred  to  in  the  docu- 
ments, where  they  are  alienated  with  other  property.  See  Cod. 
Quedlinb.  XXVII,  XXVIII,  XXIX,  XXX,  and  Juvavia  II.  Num. 
VI.  p.  22. 

Note  114.  —  Page  45. 

Laureshara  Cod.  CCCCLXVIII.  See  also  Indie.  Arnon.  VII. 
4  :  prata  et  silva  et  medietatem  de  lacu  piscatione.  Lib.  Eli.  II. 
20 :  dedit  unius  gurgitis  piseationem.  Liseh.  Urk.  II.  No.  I : 
piscatura  dimidiam  juxta  mare.  Juvavia  II.  p.  22.  Lacomblet 
Urkb.  5.     Cod.  Quedlinb.  XXVII-XXX. 

Note  115.  —  Page  46. 

Fez  Thesaurus  VI.  Part  I.  p.  72  :  de  curte,  qui  dieitnr  Atarhohf, 
inde  licet  piscari  in  Maninseohcbdomadas  duas  circa  natale  Domini. 
This  is  one  of  the  Mondsee  records.  Sometimes  a  man  was  obliged 
to  fish  with  a  small  net.  See  Stenzel  XL VIII :  piscaturam  cum 
purvo  rete.  On  the  sea-coast  the  number  of  boats  which  a  man 
might  send  out  was  sometimes  limited.  See  Lisch.  Urk.  LVIII : 
libertatem  capiendi  rumbos  \_Jlounders'\  cum  una  navi  et  rctibus 
in  mari  salso  tcrre  nostrc  dominio  adjacenti.  In  earl}'  times,  of 
course,  hunting  and  fishing  were  enjoj'cd  ad  libitum.  It  was  a  long 
while  before  rights  were  defined  or  limited.  The  passage  last  cited 
dates  from  the  year  1265.  Just  as  soon  as  there  was  a  scarcity  of 
game  or  fish,  disputes  arose  regarding  hunting  and  fishing  grounds, 
and  riglits  of  propert}'  in  them,  and  rights  of  enjoj-ment  in  them 
were  defined.  Rights  to  hunt  and  fish  were,  in  most  cases,  as- 
sumed by  the  landlords,  who  distributed  tliem  in  the  form  of  rights 
of  common  among  their  tenants.     The  r'vi\\t  to  fish  in  the  lord's 


NOTES  AND  REFERENCES.  203 

waters  is  called,  in  the  English  law,  the  "  common  of  piscar}'."  A 
"  common  of  fowling"  is  not  unheard  of.  All  such  rights  fall  un- 
der the  general  head  of  "  profits  ;i  prendre." 

Note  IIG.  —  Page  46. 

The  German  famil}-,  or  clan  growing  out  of  it,  is  best  described 
b}'  the  German  word  Erbgenossenschaft.  It  was  a  group  of  heirs 
bound  together  by  the  possession  of  an  inheritance  in  the  land. 
The  inheritance  was  the  main  bond  of  union  or  association  among 
them.  There  was  no  other,  in  the  earlj'  time,  except  the  bond  of 
kinship,  which,  in  itself,  was  a  rather  loose  one. 

The  Erbgenossenschaft  must  be  very  carefully  distinguished  from 
the  association  of  Awia-holders,  the  Hubengemeinde.  The  Ilaben- 
gemeinde  was  an  association  of  tenants  holding  allotments  of  land 
(hubae)  from  a  landlord  or  landlords.  The  Erbgenossenschaft  was, 
at  the  time  of  which  we  are  'speaking,  the  association  of  landlords. 
The  Erbgenossrnschaft  \cy\  often  embraced  one  or  more  Hubenge- 
meinden.  That  is  to  say,  the  inheritances  of  the  Erbgenossen  con- 
sisted of  Huben.  An  inheritance  in  the  Erbgenossenschaft  consisted 
of  one,  two,  or  more  Hubcn  of  the  Ilubengemeinden. 

In  later  times  the  distinction  here  drawn  is  of  no  importance. 
We  have  ErbgenossenscJiaften  of  tenants,  and  Hubcngemeinden  of 
landlords.  The  two  institutions  arc  so  confounded  that  they  can- 
not be  distinguished.  We  shall  consider  this  matter  at  greater 
length  presently. 

It  is  worth  while  here  to  speak  of  the  resemblance  between  the 
Teutonic  Erbgenossenschaft  and  the  Hindu  village  community'.  The 
resemblance  is  very  striking.  The  landholders  in  the  Hindu  vil- 
lage almost  always  trace  their  descent  from  a  common  progeni- 
tor, the  founder  of  the  village  and  first  holder  of  the  village  lands. 
The  landholders  in  the  village  are  the  heirs  and  representatives  of 
this  person.  Sometimes  the  inheritance  is  undivided  for  several 
generations.  During  this  time  the  heirs  are  apt  to  live  in  the  an- 
cestral house,  forming  a  house  communit}' ;  and  the  land  is  held 
in  undivided  shares,  in  common.  After  a  while,  however,  the 
heirs  in  the  inheritance  become  too  numerous  to  live  together  in 
one  house.  They  have  to  separate.  New  houses  nro  built  in 
which  they  distribute  themselves.     At  the  same  time,  the  land,  or 


204  EARLY  HISTORY  OF  LAND-HOLDING. 

as  much  of  it  as  is  required,  is  divided  among  the  different  house- 
holds. Ever}'  house  has  then  an  inheritance  in  severalty.  The 
distribution  of  the  land  is  usuall}'  made  according  to  the  law  of  in- 
heritance applied  to  a  table  of  descents  from  the  common  progeni- 
tor, i.  e.  per  stirpes  etjure  hereditario.  As  the  heirs  increase  in  the 
different  households  of  the  village,  the  inheritances  of  the  house- 
holds have  to  be  divided  and  subdivided  among  the  members,  and 
the  number  of  households  increases  constantly.  The  heir  in  an  un- 
divided inheritance  is  allowed,  at  any  time  he  pleases,  to  have  his 
portion  of  the  inheritance  divided  off  and  assigned  to  him  as  a 
sevcraltv.  From  time  to  time,  as  the  land  becomes  exhausted,  the 
fields  of  the  village  are  shifted  to  a  new  localitj".  In  such  cases 
the  households  of  the  village  receive  equivalent  inheritances,  and 
the  individual  receives  a  share  of  the  land  assigned  to  tlie  house- 
hold of  which  he  is  a  member.  The  divisions  are  regularly  made 
according  to  descents  and  the  law  of  inheritance.  The  undivided, 
common  land  of  the  village  is  regarded  as  the  undivided  inheritance 
of  the  dilFerent  households,  and  of  the  individuals  within  these 
households.  The  Hindu  family  or  clan,  like  the  German  family 
or  elan,  is  not,  properly  speaking,  a  land-owning  corporation.  It  is 
simply  a  group  of  heirs,  with  a  partly  divided,  partly  undivided,  in- 
heritance in  the  land  and  the  things  on  the  land.  The  corporate 
character  which  the  observers  of  the  Hindu  village  community 
have  described,  and  so  much  insisted  upon,  is  due  to  the  fact  that 
the  heirs  in  the  village  are  held  collectively  responsible  for  the  pay- 
ment of  state  taxes.  The  villagers  are  taxed,  not  as  individuals, 
but  as  a  group.  They  are  taxed  as  a  corporation.  Apart  from 
their  relations  with  the  state,  however,  they  must  be  regarded  as  a 
group  of  parceners  rather  than  as  a  bod}-  corporate.  A  man  dies 
holding  certain  taxable  property.  The  property  passes  to  his  heirs, 
who  hold  it  in  undivided  shares.  The}'  are  collectively  responsible 
for  the  taxes,  but  they  are  not  properly  speaking  a  body  corporate. 
According  to  our  system  of  law,  when  the  property  is  divided 
the  shareholders  pay  their  taxes  severally  and  indi\'idually.  There 
is  no  coUoctive  responsibility  among  them.  But  in  India  the  col- 
lective responsibility  remains,  whether  the  property  is  divided  or 
not.  A  certain  tax  being  laid  upon  the  property,  it  is  paid  by  the 
holders  of  the  property,  whether  tliey  hold  it  in  undivided  shares  or 
in  severalties.  They  distribute  the  burden  among  themselves  as 
they  please. 


NOTES  AXD  REFERENCES.  205 

The  mode  in  which  state  taxes  are  levied,  and  distributed  among 
the  landholders,  has  nothing  to  do  with  the  internal  constitution  of 
the  village,  except  in  so  far  as  it  may  be  the  means  of  altering  that 
constitution.  AVe  have  no  reason  to  believe  that  the  revenue  system 
of  the  Hindu  kings,  or  of  their  conquerors,  has  to  any  a[)preciable 
degree  changed  the  constitution  of  the  Indian  village  community. 
The  taxes  have  always  been  paid  according  to  the  extent  of  the 
different  inheritances  ;  and  the  principle  of  private  property  has 
been  persistently  adhered  to. 

Note  117.  —  Page  46. 

Formula  CCCXVIII :  in  vico  et  genealogia  quae  dicuntur,  ubi 
rivolis  illc  intrat  in  ilium  flumen,  curtiles  duos  et  aforis  a  terra 
arabili  jurnales  tantos  et  de  pratis  ad  carradas  tantum  et  molendi- 
num  unum  ;  et  e  contra  in  conpensatione  harum  rerum  dedit  memo- 
ratus  vir  ex  suo  proprio  prefato  episcopo  ad  partem  episcopum,  in 
pago  illo,  in  villa  vocabulo  illo,  prope  fluvium  ilium,  curtilem  unum 
et  aforis  de  terra  jurnales  tantos,  lucos  duos,  molendina  duo.  We 
see  here  that  the  principle  of  private  propert}'  was  fully  recognized 
within  the  vicus  vel  genealogia.  Cf.  also  Brev.  Not.  Salzb.  VII.  3  : 
portio  venationis  communis  cum  cohaeredibus.  It  was  alienated 
to  the  church  at  Salzburg  by  a  member  of  the  genealogia  de  Albina. 
See  Ibid.  VIII.  1.  And  read  again  Lex  Alam.  LXXXIV  :  conten- 
tio  inter  genealogias  de  termino  terrae  eorum.  The  passage  is  given 
in  full  in  Note  5G.  It  must  be  remembered  that  within  the  limits 
of  the  clan  land  the  law  of  inheritance  was  in  operation.  By  it  the 
right  of  property  in  the  land  was  being  distributed  among  the  in- 
dividual clansmen  from  generation  to  generation.  In  connection 
with  Lex  Alam.  LXXXIV,  Lex  Alam.  LXXXVIII  must  not  be 
forgotten :  ut  fratres  post  mortem  patris  eorum  hereditatem  non 
dissipent  antequam  dividant  cam.  Nor  must  we  forget  the  docu- 
ments of  Cod.  S.  Galli  in  which  individual  inheritances  of  clan 
land  are  described  :  cam  campis^  pratis,  paxcuis,  silvis,  etc. 

Note  118.  — Page  47. 

See  Kemble's  Saxons  in  England,  Vol.  I.,  Appendix  A  (I,  p.  449 
of  the  new  edition,  London,  1.S7G,  8""). 


206  EAKLY  HISTORY  OF  LAND-HOLDING. 

Note  119.  — Page  47. 
Ethelbert  3,  5,  13,  17. 

Note  120.  —  Page  48. 

See  Dr.  Ernst  Forstemimn :  Die  deutschen  Ortsnamcn  (Nord- 
hausen,  18G3,  8°)  ;  his  Altdeutsches  Namenbuch,  Zweiter  Band : 
Ostsnamen  (Nordhausen,  1872,  4°)  ;  Prof.  Willielm  Arnold's  An- 
siedelungen  und  Wanderungen  Dcutscher  Stiimme  (Marburg, 
1875,  S^)  ;  the  Rev.  Isaac  Taylor's  Words  and  Places  (London, 
1865,  8°)  ;  and  Mr.  F.  Seebohm's  English  Village  Community 
(published  this  year  by  Longman  &  Co.,  in  London,  8°). 

Besides  examining  the  lists  of  local  names  in  the  above-mentioned 
works,  the  student  will  find  it  worth  his  while  to  look  over  the  geo- 
graphical indices  of  the  Cod.  S.  Galli  and  Hist.  Prising.,  and  over 
some  good  map  of  Germany-  that  gives  the  names  of  small  villages. 

Note  121.  —  Page  48. 

See  the  genealogies  in  Angl.  Sax.  Chron.  at  the  3-ears  547,  552, 
560,  597,  Gil,  617.  Take  for  example  the  last-named  3'ear,  where 
Edwin  the  son  of  Aella  is  described  as  Eadwiue  Aelling.  There 
would  be  as  many  Aellings  in  England  as  there  were  sons  of  men 
named  Aella ;  but  the}'  would  not  necessarily  be  related  one  to 
another. 

Note  122.  — Page  49. 

Edictus  domni  Ililperici  regis  (in  Merkel's  Lex  Salica,  p,  37), 
§  3  :  Simili  modo  placuit  atque  convenit,  ut  si  curaqne  vicinos  habens 
aut  filios  aut  fihas  post  obitum  suum  superstitutus  fuerit,  quamdiu 
filii  advixerint  terra  habeant,  sicut  et  lex  salica  habet.  Et  si  subito 
filios  defuncti  fuerint,  filia  simili  modo  accipiant  terras  ipsas,  sicut 
et  filii  si  vivi  fuissent  aut  habuissent.  Et  si  moritur,  frater  alter 
superstitutus  fiiorit,  frater  terras  accipiant  non  vicini.  Et  subito 
frater  moriens,  frater  nc  1  derelinqucrit  superstitem,  tunc  soror  ad 
terra  ipsa  accedat  possidenda.  Det  illi  vero  et  convenit  singula 
de  terras  istas  qui  si  adveniunt,  ut  leodis  qui  patri  nostro  fuerunt 
consuaetudinem  qua  habuerunt  de  hac  re  intra  se  debeant. 


NOTES   AND   REFERENCES.  207 

Note  123.  —  Page  49. 

Lex  Burg.  Add.  I.  Tit.  I.  5.  Formula  CXXVII.  See  Notes 
72,  74,  82. 

Note  124.  — Page  50. 
Lex  Wisig.  X.  Tit.  I.  1,  2,  3,  8,     See  Notes  74-91. 

Note  125.  —  Page  50. 

Lex  Sal.  XLV :  De  Migrantibus.  1.  Si  quis  super  altcnim  in 
villa  migrare  voluerit,  si  unus  vel  aliqui  de  ipsis  qui  in  villa  consis- 
tunt  eum  suscipere  voluerit,  si  vel  unus  exteterit  qui  contradicat, 
migranti  ibidem  licentiam  non  habebit.  2.  Si  vero  contra  interdicto 
unius  vel  duorum  in  villa  ipsa  adsedere  praesumpserit,  tunc  ei  tes- 
tare  debet  et  si  noluerit  inde  exire  ille  qui  testat  cum  testibus  sic  ei 
debet  testare  :  Hie  tibi  testo  in  liac  nocte  proxima  in  hoc  quod  lex 
Saliga  habet  sedeas  et  testo  tibi  ut  in  x  noctes  de  villa  ipsa  cgre- 
dere  debeas.  Postea  adhuc  post  decern  noctes  iterum  veniat  ad 
ipsum  et  ei  testet  ut  iterum  in  decem  noctes  exeat.  Si  adhuc  no- 
luerit exire,  item  tertio  decern  noctis  ad  placitum  suum  addatur  ut 
sic  xxx  noctes  impleatur.  Si  nee  tunc  voluerit  exire,  tunc  maniat 
eum  ad  mallum  et  testes  super  singula  placita  qui  fuerunt  ibi  prae- 
stos  habeat.  Si  ipse  cui  testatum  est  noluerit  inde  exire  et  eum 
aliqua  sunnis  non  tenuerit  et  ista  omnia  quae  superius  diximus 
secundum  legem  est  testatus,  tunc  ipse  qui  testavit  super  furtuna 
sua  ponat  et  roget  graflonem  ut  accedat  ad  locum  et  eum  inde  ex- 
pellat.  Et  quia  legem  noluit  audire,  quod  ibi  laboravit  demittat  et 
insuper  mcc  dinarios  qui  faciunt  solidos  xxx  cuipabilis  judicetur. 
3.  Si  vero  quis  migraverit  et  infra  xii  menses  nullus  testatus  fuerit, 
securus  sicut  et  alii  vicini  maneat. 

Note  12G.  —  Page  53. 
See  Notes  92-100. 

Note  127.  —Page  54. 

Lex  Angl.  Werin.  VI:  De  Alodibus.  1.  PIcreditatem  dcfuncti 
filius,    non    filia   suscipiat.     Si    filium    non   habuit   qui   defunctus 


208  EARLY  HISTORY  OF  LAND-HOLDINQ. 

est,  ad  filiam  pcciinia  et  mancipia,  terra  vero  ad  proximum 
paternae  generationis  consanguineum  pertineat.  2.  Si  autem  nee 
filiam  habuit,  soror  cius  pccuuiam  et  mancipia  :  tcrram  proximus 
paternae  generationis  accipiat.  3.  Si  autem  nee  filium,  nee  filiam, 
neque  sororem  habuit,  sed  matrem  tantum  superstitem  reliquit, 
quod  filia  vel  soror  debuerat,  mater  suscipiat,  id  est,  pccuniam  et 
mancipia.  4.  Quod  si  nee  filium,  nee  filiam,  nee  sororem,  aut  ma- 
trem dimisit  superstites,  proximus  qui  fuerit  paternae  generationis, 
heres  ex  toto  succedat,  tarn  in  pecunia  atque,  mancipiis,  quam  in 
terra.  5.  Ad  quemcunque  hereditas  terrae  pervenerit,  ad  ilium 
vestis  l)ellica,  id  est  lorica,  et  ultio  proximi,  et  solutio  lendis,  de- 
bet pcrtinere.  6.  Mater  moricns  filio  terram,  mancipia,  pecuniam 
dimittat,  filiae  vero  spolia  colli,  id  est  murenas,  nuscas,  monilia, 
inaures,  vestes,  armillas,  vel  quidquid  ornamcuti  proprii  videbatur 
habuisse.  7.  Si  nee  filium,  nee  filiam  babuerit,  sorori  pecuniam 
ct  mancipia,  proximo  vero  paterni  generis  terram  relinquat. 
8.  Usque  ad  quintam  gencrationem  paterna  generatio  succedat. 
Post  quintam  autem  filia  ex  toto,  sive  de  patris  sive  matris  parte, 
in  hereditatem  succedat,  et  tunc  demum  hereditas  ad  fisum  a  lancea 
transeat. 

Note  128.— Page  54. 

Ivothar  CLTII :  Omnis  parentcla  usque  in  septiinum  gcnuculum 
numeretur,  ut  parens  parenti  per  gradum  et  parentelam  heres  suc- 
cedat. Sic  tamen  ut  ille  qui  succedere  vult,  nominatim  uniuscuius- 
que  nomina  parentum  suorum  antecessorum  dicat.  Et  si  intentio 
fuerit  contra  Curtem  Regis,  tunc  ille  uni  quacrit,  praebeat  sacra- 
mentum  cum  legitimis  sacramcntalibus  suis  duodecira,  et  dicat  per 
ordinem,  quod  parentela  nostra  sic  fuit ;  et  illi  sic  fuere  nobis  pa- 
rentes  quomodo  nos  dicimus. 

An  explanation  of  the  septimum  gcnuculum  is  to  be  found  in  the 
Sachsenspiegel  I.  3,  §  3. 

The  classification  of  collateral  heirs  appears  to  have  been  deter- 
mined, among  the  Germans,  with  reference  to  the  natural  divisions 
of  the  family  and  clan.  It  was  not  an  artificial  classification  like 
that  of  the  ancient  Irish,  described  in  the  Book  of  Aicill.  See  An- 
cient Laws  and  Institutes  of  Ireland,  Vol.  III. 

Although  the  classification  of  collateral  heirs  was  based  upon 


NOTES  AND  REFERENCES.  209 

the  natural  divisions  of  the  fauiil}-,  and  chin  growing  out  of  it,  the 
question  has  been  raised  whetlier  the  grandson  of  a  father  was 
preferred  to  the  son  of  a  grandfather  ;  whether  the  grandson  of  a 
grandfather  would  be  preferred  to  the  son  of  a  great-grandfather. 
That  is  to  sa}',  were  near  descendants  of  a  remote  ancestor  pre- 
ferred to  distant  descendants  of  a  near  ancestor?  We  do  not 
propose  to  enter  into  a  discussion  of  this  question.  If  the  reader 
cares  to  go  into  it,  he  should  read  the  following  books  and  essays. 
See  first  Johann  Christian  Majer's  Deutsche  Erbfolge  (Stuttgart, 

1804,  8°),  and  his  Gemeinrechtliche  Erbfolge-Ordnung  (Stuttgart, 

1805,  8°).  Then  Heinrich  Sicgel's  Germanische  Verwandsehafts- 
berechnung  (Giessen,  1853,  8°),  and  his  Deutsche  Erbreclit  (Hei- 
delberg, 1853,  8°).  Then  Dr.  II.  Wasserschleben's  Prinzip  der 
Successionsordnung  (Gotha,  1860,  8°),  and  a  Replik  by  the  same 
author  (Giessen,  1864,  8°).  Next  in  order,  the  controversy  still 
raging,  comes  a  summing  up  of  arguments  by  Lewis  in  the  Kritische 
Vierteljahrschrift  fiir  Gesetzgebung  und  Rechtswissenschaft  (IX. 
p.  23).  Then  we  have  Dr.  Heinrich  Brunuer's  Anglonormannische 
Erbfolgsystem  (Leipzig,  1869,  8°)  ;  and,  lastly,  Karl  von  Amira's 
Erbfolge  und  Verwandschafts-Gliederung  (Miinchen,  1874,  8°). 
Unless  the  student  has  a  taste  for  controversies  he  will  hardly  be 
tempted  into  this  one.  There  is  very  little  to  be  ascertained 
from  it. 

Note  129.  — Page  55. 

Hist.  Frising.  CDXCII,  DLXXIV.  Mon.  Scheftl.  I  (p.  363) 
See  also  Hist.  Frising.  XHI :  congregavi  multitudinem  parentum 
meorum  nobiliura  virorum,  per  quandam  dubitationeni  liliorum 
meorum,  consiliavi  cum  illis  sicut  ipsi  consilium  eorum  niihi  per 
fidem  dederunt  ut  hereditatem  tradidisscm ;  and  Ibid.  LXXX  : 
hacc  sunt  nomina  proximorum  suoruni,  qui  banc  convenientiam 
cum  ipso  Waldkero  fecerunt  [Tradedit  hereditatem].  Ibid.  CII : 
tradedi  hereditatem  et  propinqui  mei  conscnserunt  et  firmaverunt 
cum  verbis  eorum.  Ibid.  CXLII :  factum  est  in  presentia  matris 
eorum  nomine  ludit,  et  aliorum  plurimorum  qui  ibidem  de  familia 
adfuerunt.  Ibid.  CCCVIII :  traditionem  feci ;  contigit  autem  mihi, 
ut  ego  valida  infirmitate  depressus  vocari  ad  me  proximos  et  viei- 
nos  meos  et  in  manus  illorum  totam  dictam  rem  uieam  per  wadium 

14 


210  EARLY   HISTORY   OF   LAND-HOLDIXG. 

posui,  lit  ipsi  perfecissent  traditionem.  Cf.  also  Ibid.  I.  p.  49,  —  the 
passage  cited  in  Note  81.  Then  read  Fulda  Cod.  189  :  talem  por- 
tionem  que  mihi  a  parentibus  meis  in  propiictatcm  hereditario  jure 
contigit,  consentiontibus  atque  simul  conlaudantibus  fratribus  ac 
sororibus  meis  uterinis,  nuUoque  parentuin  meorum  et  affinium  con- 
tradicente  coram  testibus  idoneis  et  cognatis  meis  trado.  This  is 
as  good  a  case  as  we  could  find.  Cf.  Chron.  Benedictob.  p.  74  : 
tradidit  absque  ullius  contradictione  quidquid  proprietatis  habebat 
in  villa  Taerzins,  edificia,  curtes,  animalia,  sive  in  agris,  in  pratis, 
silvis,  calminis,  montibus  aquis,  etc.  Mon.  Schlehdorl".  p.  1  :  here- 
ditatom  propriam  transfundavi,  per  consensum  illustrissinii  Duels 
Tassilonis  et  Satrabuni  ejus,  atque  confinitimorum  nostrorum  con- 
sentieutium.     Some  more  references  will  be  given  under  Note  164. 

Note  180.  — Pace  56. 

Formula  CCXXXTX.  In  a  majority  of  the  documents  the  heirs, 
collateral  as  well  as  descendant,  are  warned  that  no  claim  on  their 
part  will  be  deemed  valid.  The  following  formula  is  that  which  is 
commonlj'  used :  si  quis,  quod  futurum  esse  non  credimus,  aliquis 
de  heredibus  nostris,  vel  quicumque,  contra  banc  cessionem  nos- 
tram  agere  aut  ipsa  rem  tibi  auferre  conaverit,  inferat  tibi  cum 
cogente  flsco  auri  tantum,  et  banc  epistola  firma  permaneat  cum 
stipulatione  subnexa. 

Note  131.  — Page  57. 

See  the  last  paragraph  on  p.  12;  then  pp.  17-19.  It  maybe 
argued  from  the  words  of  Ca?sar,  privati  ac  separati  agri  apud  eos 
\_Suevos']  nihil  est,  that  private  estates  were  unknown ;  but  the 
argument  is  inconclusive.  The  agri  may  have  been,  probabl}'  were, 
occupied  and  cultivated  by  serfs,  and  the  lords  and  owners  of  the 
serfs  were  lords  and  owners  of  the  land  which  they  cultivated.  It 
is  probable  that  in  the  time  of  Caesar,  as  in  the  time  of  Tacitus, 
agri  were  occupied  according  to  the  number  of  cultivators ;  that 
the  cultivators  were  serfs  ;  that  agri  having  been  thus  occupied 
(pro  nuinero  cultorum)  were  redistributed  in  sections,  spat  la  campo- 
riun,  and  so  intermixed.  That  being  the  case,  it  might  very  well 
be  said  :  privati  ac  separali  agri  apud  eos  nihil  est.     The  phrase 


NOTES  AND  REFERENCES.  211 

ma}-  refer,  however,  simply  to  the  absence  of  boundaries  between 
the  possessions  of  one  free-lord  and  another.  It  may  not  mean 
an}-  more  than  the  passage  in  VI.  22  :  nequc  quisquam  agri  modum 
certum  aut  fines  habct  proprios.  The  conclusion  to  which  these 
considerations  lead  is,  that  there  is  nothing  in  the  statements  of 
Ciesar  which  can  legitimately  lead  us  to  suppose  that  the  holding 
of  land  was  communistic.  It  is  quite  possible  that  the  principle  of 
individual  property  was  fully  recognized.  We  must  not  assume 
that  the  life  of  the  people  had  alwa3S  been  migratory.  There  were, 
doubtless,  periods  of  permanent  settlement  before  the  beginning 
of  recorded  history.  Private  propertv  in  laud  ma}-  have  existed 
among  the  Germans  hundreds  of  years  before  we  meet  with  them 
in  the  Commentary  of  Caesar.  The  reasons  which  the  Germans 
gave  Ctesar  as  accounting  for  their  migratory  life  would  indicate 
that  they  had  had  some  experience  of  the  regime  of  private  prop- 
erty. They  were  afraid,  if  they  settled  anywhere  permanently,  that 
the  rich  would  drive  the  poor  from  their  possessions,  and  so  make 
great  estates  for  themselves.     See  Note  31. 

Note  132.  —  Page  57. 

The  testimony  of  Tacitus  has  been  pretty  thoroughly  discussed 
in  the  previous  pages  and  in  previous  notes.  Enough  has  been 
said  about  it  perhaps.  Besides  the  passages  already  considered, 
however,  — Germ.  5,  16,  20,  25,  26,  32,  —  it  may  be  well  to  cite  the 
following  passage  from  the  Annals.  An.  IV.  72  :  ac  primo  boves 
ipsos,  mox  agros,  postremo  corpora  conjugura  aut  liberorum  servitio 
tradebant  [Frisii,  transrhenanus  populus].  This  would  indicate 
that  the  Frisians  held  agri  as  property,  that  their  property  con- 
sisted chiefly  of  cattle  and  lands.  We  know  from  the  concurrent 
testimony  of  the  later  records  that  this  was  the  case.  Without 
doubt,  the  testimony  of  Tacitus  goes  to  prove  the  existence  of  pri- 
vate property  in  land.  Communistic  holding  of  land  was  probably 
quite  unknown.     There  is  no  reference  of  any  kind  to  it. 

Note  133.  — Page  57. 

This  will  appear  like  a  very  bold  statement :  but  we  have  spent 
the  best  })art  of  six  years  in  reading  through  the  early  records  with 


212  EARLY  HISTORY  OF  LAND-HOLDINa. 

the  question  in  mind  :  Is  there  any  evidence  of  tlie  existence  of 
communism  in  respect  to  land?  We  have  found  none.  We  make 
our  statement,  therefore,  not  raslily,  but  calmly,  with  the  assurance 
of  approximately  complete  knowledge. 

Note  134.  — Page  58. 
See  pp.  27-4G  inclusive,  and  the  Notes  referred  to. 

Note  135.  — Page  58. 
See  pp.  21-23,  and  Notes  referred  to. 

Note  136. —  Page  58. 

Formula  CCCCXII :  Relatione  pagensium  ad  rege  directa.  For- 
mula CXXVII :  De  divisione  ubi  rege  accederit  missus.  See 
Notes  G3,  74.  Cf.  Liulprand  LXXIII :  et  ipse  judex  faciat  venire 
parentes  ipsius  proi)inquos,  ut  una  cum  ipsis,  aut  per  se,  aut  per 
missum  suum  res  ipsas  dividat,  sic  tamen  ut  omni  tempore  sortes 
stare  debeant  et  adaequatio  pcrcurrat.  The  only  exception  to  the 
statement  that  when  fighting  was  given  up  disputes  were  referred 
to  the  chief  or  king,  or  an  agent,  missits,  is  found  in  Lex  Wisig.  X. 
Tit.  I.  3  :  si  plures  fuerint  in  divisione  consortes,  quod  a  multis 
vel  melioribus  juste  constitutum  est  a  paueis  vel  deterioribus  non 
convenit  aliquatenus  immutari. 

Among  the  Visigoths  tlie  voice  of  the  best  men,  or  of  a  majorit}', 
was  referred  to  in  disputes  regarding  tlie  division  of  land.  But 
this  fact  is  no  evidence  of  communism,  because  it  is  assumed  that 
the  shareliolders  have  riglits.  The  best  men,  or  the  majority,  are 
referred  to  as  judges  to  decide  disputed  claims.  Observe  the  force 
of  the  w'ords^'ws^e  constitutum  est. 

Then  it  must  be  rememl)ered  tliat  the  division  of  land  once  made 
was  permanent.  The  decision  of  tlie  best  men,  or  of  the  majority, 
was  not  to  be  revoked  :  sed  quod  a  parentibus  vel  vicinis  divisum 
est,  posteritas  immutare  non  tentet.     See  Lex  Wisig.  X.  Tit.  I.  8. 

Note  137.  —  Page  59. 

See  Notes  73-77.  Whenever  a  tract  of  territory  was  occupied, 
there  was  at  once  a  distribution  or  ap[)ropriation  of  inheritances ; 


NOTES  AND   REFERENCES.  213 

and  these  inheritances  passed  from  tlie  original  holders  to  tlieir 
descendants  to  be  divided  and  snbdivided  among  them.  This 
appears  ver}'  clearly  in  the  first  three  paragraphs  of  the  Edict  of 
Chilperic  (A.  D.  573-575).  Tlic}-  are  as  follows:  1.  Pertrac- 
tantes  in  Dei  nomen  cum  viris  magnificentissimis  ohtimatibiis,  vel 
antrustionibus,  et  omni  populo  nostro,  convenit  qui  lluviumCaronna 
[_Garon7ie']  hereditas  non  transiebat,  ubi  et  ubi  in  regione  nostra 
hereditas  detur  [leodibus  nosf.ris^,  sient  et  reliqua  loca  ut  et  Turro- 
vaniasis  heroditatcm  dare  debent  et  accipere  [for  as  in  other  places 
so  now  in  the  country  of  Tours  inheritances  must  he  distributed  and 
received^ .  2.  Similiter  convenit  ut  reibus  [rebus^  res,  i.  e.  heredi- 
tates]  concederemus  omnibus  leodibus  nostris,  ut  per  modicam 
rem  scandalos  \_lll feeling ,  discontent^  disturbance'^  non  generetur  in 
regione  nostra  \_it  was  decided  that  everybody  should  have  an  inherit- 
ance']. 3.  Simili  mode  placuit  atque  convenit,  ut  quicumque  vici- 
nos  [froximi,  parentes  vel  vicini']  aut  filios  ant  filias  post  obitum 
suum  superstitutus  fuerit,  quamdiu  filii  advixcrint  terra  habeant, 
sicut  et  lex  Salica  habet  .  .  .  The  rest  of  the  passage  may  be 
read  in  Note  122. 

These  paragraphs  have  been  much  misunderstood.  The  assump- 
tion that  the  word  reibus,  in  §  2,  has  reference  to  the  sum  of  money 
which  he  who  married  a  widow  was  obliged  to  pay  to  the  relatives 
(see  the  first  of  the  Capitularies  appended  to  Lex  Salica,  §  7,  on 
p.  90  of  Behrend's  edition)  is  absurd.  The  word  reibus  stands  for 
rebus,  and  rebus  stands  for  res,  without  doubt.  Merkel  gives  us  the 
reading  rebus  (p.  37),  and  makes  no  reference  to  any  other.  The 
use  of  the  ablative  instead  of  the  accusative  is  not  uncommon  in 
these  early  writings.     The  accusative  loca  is  used  for  loeis  in  §  1. 

The  localities  referred  to  in  §  1  are  fixed  for  us  in  Greg.  Turon. 
IV.  48. 

Note  138.— Page  59. 

Given  a  law  of  inheritance  in  land,  the  inference  is  that  all  un- 
divided lands  are  undivided  inheritances,  until  we  have  the  means 
of  proving  them  to  be  something  else. 

Given  an  undivided  inheritance,  the  inference  is  that  with  unity 
of  possession  tliere  is  diversity  of  title.  We  must  assume  that  the 
inheritance  is  divisible  among  the  heirs,  until  evidence  is  adduced 
to  show  that  it  is  indivisilde. 


214  EARLY  HISTORY   OF  LAND-HOLDINa. 

Unless  the  student  keeps  these  rules  in  mind,  he  will  tail  into 
serious  errors.  Undivided  property  must  not  be  called  common 
property.  Holding  in  common  must  not  be  described  as  commu- 
nistic holding. 

Note  139. —Page  59. 

All  these  points  have  been  so  fully  considered  in  the  preceding 
pages,  and  so  fully  illustrated  in  the  notes,  that  it  will  not  be  ne- 
cessary' to  dwell  upon  them  much  longer.  Undivided  lands  were, 
without  doubt,  regarded  as  undivided  inheritances.  See  once  more 
the  words  in  the  Edict  of  Chilperic  (Note  137)  :  convenit,  quia 
fluvium  Caronna  hereditas  non  transiebat,  ubi  et  ubi  in  regione  nos- 
tra hcreditas  detur.  Newly  occupied  lands  were  speedily  divided 
into  inheritances,  and  if  any  land  remained  undivided  it  belonged 
to  these  inheritances  in  pro  rata  shares.  See  once  more  the 
passages  of  the  Burgnndian  law,  cited  in  Note  72  ;  and  Formula 
CCCCII,  in  which  the  division  of  mark-land  inter  Jiscum  regis  et 
populares  possessioncs  is  described.  The  Formula  was  referred  to 
in  Note  70. 

Note  140.  — Page  60. 

Lex  Sal.  LX :  De  eum  qui  se  de  parentilla  tollere  vult.  1.  In 
mallo  ante  thunginum  ambulare  debet  et  ibi  tres  fustis  alninus 
super  caput  suum  frangere  del)et.  Et  illos  per  quattuor  partes  in 
mallo  jactare  debet  et  ibi  dicere  debet,  quod  juramento  et  de  here- 
ditatem  et  totam  rationem  illorura  se  toUat.  2.  Et  sic  postea  ali- 
quis,  de  suis  parentibus  aut  oceidatur  aut  moriatur,  nulla  ad  eum 
nee  hereditas  nee  conpositio  perteneat  sed  hereditatem  ipsius  fiscus 
adquirat. 

If  an}'  doubt  remains  in  the  reader's  mind,  whether  the  in- 
heritances which  passed  to  kinsmen  and  neiglibors  were  divisible 
among  them  or  not,  the  passage  above  cited  is  likely  to  re- 
move it.  It  is  evident  that  the  kinsmen  and  neighbors  received 
their  inheritances  distributivel}-,  as  a  bodj'  of  heirs,  and  not  col- 
lectively, as  a  body  corporate.  Note  the  force  of  the  words 
nulla  ad  eum  nee  hereditas  nee  conpositio  perteneat.  When  a 
man  died  without   sons,  and  his  inheritance  passed  to  his   kins- 


NOTES  AND   REFERENCES.  215 

men  and  neighbors,  every  one  of  them  came  in  for  a  share. 
The  onh-  question  which  remains  unsettled  is  the  question,  How 
was  the  inheritance  distributed  among  the  neighbors  and  kinsmen  ? 
We  know  tliat  it  was  subject  to  distribution,  but  we  do  not  know 
upon  what  principle  the  distribution  was  made.  Perhaps  it  was 
made  per  capita  ;  perhaps  it  was  made  per  stirpes.  Perhaps  it  was 
made  upon  some  other  principle.     We  know  nothing  about  it. 

Note  141.  — Page  60. 

See  pp.  48-56,  and  the  Notes  referred  to.  Sec  also  the  preceding 
Note,  No.  140. 

Note  142.  — Page  63. 

The  passage  is  cited  from  a  document  of  A.  D.  1173,  first 
printed,  "  aus  der  schonen  Urschrift,"  in  Bodmanu's  Rheingauische 
Alterthiiraer,  p.  453. 

Note  143.  — Page  64. 

It  is  said,  that  we  have  in  the  agricultural  communit}'  of  the 
Middle  Ages  the  remains  of  an  ancient  community  antedating  all 
forms  of  landlordship.  It  is  said  that  landlordship  was  introduced 
afterwards ;  that  the  primitive  community  was,  in  one  way  or 
another,  drawn  under  this  landlordship  ;  that  we  have  in  the  manor 
of  the  Middle  Ages  a  union  of  the  two  institutions,  —  landlordship 
and  the  ancient  village  communit}-.  In  other  words,  according 
to  a  generalh'  received  theory,  the  manorial  group  has  been  evolved 
out  of  the  village  communit}',  li^^  the  imposition  upon  the  village 
coramunit}-  of  an  over-lord,  with  a  right  of  property  in  the  village 
lands  and  autliorit}'  over  its  inhal)itants.  The  i)rocess  has  been 
descrilicd  as  tlic  transformation  of  the  mark  into  tlie  manor. 

There  is  aver}'  serious  objection  to  be  raised  against  this  theory. 
The  agricultural  coinmunity  of  the  IMiddlc  Ages  is  a  community  of 
tenants  under  landlordshii) ;  and  it  is  nothing  else  in  tlie  very  earliest 
period  of  its  recorded  history.  According  to  the  records  landlord- 
ship  is  at  least  as  old  as  the  agricultural  community  included  under 
it.  What  riglit  have  we,  therefore,  to  assume  that  tlie  agricultural 
commnnifv  antedates  the  institution  of  landlordship?      \\\\\  not 


216  EARLY   HISTORY  OF   LAND-HOLDING. 

assume  that  landlordsliip  existed  first,  that  the  vilUigc  conimu- 
uit}'  arose  under  it,  —  a  community  of  serfs  or  dependants  ?  It 
must  not  be  forgotten  that,  according  to  tlic  earliest  records  we 
have,  the  freemen  had  dependants  and  slaves  attached  to  their 
households.  Wh}-  not,  therefore,  derive  the  manor  out  of  tliis 
group?  AYhy  not  derive  the  manor  out  of  the  patriarchal  house- 
hold with  its  company  of  dependants  and  servants  ? 

It  is  said  that  tlie  manor  has  grown  out  of  the  village  commu- 
nit}'.  Why  not  say  that  the  village  communit}^  has  grown  out  of 
the  manor  ?  We  can  show,  first,  how  at  the  dawning  of  our  his- 
tory landlordship  existed  everywhere  ;  how  there  were  groups  of 
tenants  arising  under  it.  Then  we  can  describe  how,  as  time 
went  on,  these  groups  of  tenants  assumed  a  communal  character ; 
how  they  became  village  communities.  Lastl}',  we  can  describe 
how  tlicsc  communities  waxed  stronger  and  stronger,  until  thej' 
were  able  to  overthrow  the  incubus  of  landlordship  which  op- 
pressed tliem,  and  how  they  then  emerged  as  independent  free 
communes. 

Take,  for  example,  the  little  commonwealths  of  Uri,  Schwyz,  and 
Unterwalden,  in  Switzerland.  We  are  told  tliat  they  are  the  remains 
primitive  of  agricultural  communities  and  democratic  villages.  We 
are  told  how,  during  the  Middle  Ages,  they  became  subject  to  feudal 
lords  ;  how,  afterwards,  they  recovered  their  independence  again. 
But  what  right  have  we  to  suppose  that  they  were  independent 
communities  before  the  feudal  period?  Why  not  suppose  that  they 
were  associations  of  tenants  under  allodial  lords,  —  that  they  be- 
came organized  into  comnnuiities  during  the  periods  of  allodial  and 
feudal  landlordship,  —  that  the}'  became  strong  enough  at  last  to 
fight  for,  and  to  secure,  their  independence?  Is  there  anything  in 
the  records  inconsistent  with  this  tlicory  ?  After  a  careful  exami- 
nation of  them,  we  can  say  with  confidence  that  there  is  not.  On 
the  contrary,  there  is  a  great  deal  to  support  and  establish  it.  AYe 
cannot  go  into  this  matter  in  detail.  We  are  glad,  however,  to 
be  able  to  refer  the  reader  to  M.  J.  J.  Ilisely's  admirable  essay 
entitled,  L'Origine  et  le  Developpement  des  Libertes  des  Wald- 
stetten,  published  in  three  parts  (Lausanne,  1838-43,  8°),  by  the 
Societc  d'llistoire  de  la  Suisse  Romande. 

We  have  a  theory,  that  in  most  cases  the  village  community  has 
originated  within  the  manor  and  grown  out  of  it,  that  the  manor  has 


NOTES  AND  REFERENCES.  217 

disappeared  leaving  the  village  comiiiunit}-  as  a  legacy  to  the  fu- 
ture. Had  we  space,  we  should  be  able  to  illustrate  this  theory 
by  man}-  examples.  Only  consider  the  multitude  of  village  com- 
munes in  France  and  in  German}',  which  were  manorial  villages 
during  the  earl}'  and  middle  ages  ;  which  have  succeeded  in  throw- 
ing off  the  overlordship  which  oppressed  them  so  long ;  which 
appear  now  as  independent,  free  communes  ! 

The  theory  that  these  communes  existed  before  there  was  any 
landlordship,  that  they  were  not  in  their  origin  manorial  villages, 
is  probably  erroneous,  except,  perhaps,  in  regard  to  a  few  cases. 

Note  144.  —  Page  65. 

The  advocates  of  the  communism  theory  assume,  in  the  first 
place,  that  private  property  has  arisen  from  the  disentanglement  of 
individual  from  collective  rights,  —  the  rights  of  the  family  from 
those  of  the  tribe  or  clan,  the  rights  of  the  individual  from  those  of 
the  family.  Then,  wherever  they  find  any  communism,  no  matter 
where  it  is,  or  what  its  date  is,  they  seize  upon  it  and  describe  it 
as  a  vestige  of  the  primitive  condition  of  things.  And  wherever 
they  find  private  property,  they  say  at  once,  the  communistic  stage 
of  development  has  been  passed.  Then,  even  where  they  find  no 
evidence  tliat  communism  ever  existed,  they  assume  that  it  ex- 
isted, '•  because  it  existed  everywhere  in  early  times."  Again 
and  again  they  fall  back  upon  their  original  assumption,  that  pro- 
gress has  been  from  communism  towards  individualism  ;  and  tliey 
convince  the  uninitiated  simi)ly  by  incessant  reiteration  of  this 
idea.  They  assume  what  they  have  to  prove,  and  prove  it  by  re- 
iteration. 

The  evidence  adduced  to  prove  tlic  universality  of  communism 
in  early  society,  has  very  little  value  from  a  scientific  point  of  view. 
It  consists  of  fragments  of  communism  gathered  from  all  parts  of 
the  world  and  from  all  periods  of  time,  classified  in  a  most  im[)erfect 
manner. 

It  may  be  thouglit  that  we  are  too  severe  in  this  judgment.  We 
are,  therefore,  glad  to  cite  the  following  passage  from  an  essay  of 
M.  Fustel  de  Coulanges,  read  before  the  French  Academy  in  No- 
vember, 1879.  The  subject  of  the  essay  is  "La  Propriety  5. 
Sparte."     The  essay  was  printed  iu  the  "  Seances,"'''  in  the  "  Jour- 


218  EARLY  HISTORY  OF  LAND-HOLDIXG. 

nal  dcs  Savants,"  and  afterwards  separately  (Alpb.  Picard,  Paris, 
1880,  8°). 

"II  s'cst  produit,  dans  ces  dernicres  annees,  uno  opinion  liisto- 
rique  qui  nous  parait  meriter  une  serieuse  attention,  mais  dont 
I'exactitude  a  besoin  d'etre  verifiee.  On  a  soutenu  que  le  droit  de 
propriL'te  sur  le  sol  avait  etc  ineoiniu  anx  antiques  soeietes,  qu'elles 
avaient  longtemps  cultive  la  terre  en  couimun,  et  qu'elles  n'utaient 
passees  au  regime  de  I'appropriation  que  tardivement  et  par  degrds. 
.  .  .  L'expression  la  plus  claire  de  I'opinion  nouvelle  se  trouve 
dans  le  livre  qu'un  esprit  fort  distingue,  M.  Em.  de  Lavele^^e,  a 
public  en  1874,  sous  ce  titre :  De  la  propriete  et  de  ses  formes 
primitives.  L'auteur  passe  en  revue  presque  tous  les  peuples  du 
monde,  la  Russie,  File  de  Java  et  I'lnde,  la  marhe  germanique  et 
les  communautes  agraires  des  Arabes,  Rome  et  rEg3-pte,  I'ancienne 
Grece  et  la  Suisse  moderne.  .  .  .  Je  ne  conteste  pas  que  la 
methode  comparative  ne  soit  fort  utile  en  liistoire ;  clle  pent  de- 
venir  une  source  fcconde  de  dccouvertes ;  mais  I'abus  en  est  dan- 
gereux.  Vous  apercevez  certaines  communautes  de  village  dans 
rinde  ;  vous  recontrez  quelque  chose  d'analogue  dans  le  mir  russe 
et  dans  les  petits  villages  de  Croatie  ;  vous  entrevo3"ez  les  niemes 
traits  dans  les  allmcnden  de  la  Suisse ;  vous  rapproehez  de  tout  cela 
deux  lignes  de  Cesar  sur  les  anciens  Gerraains,  une  phrase  de  Dio- 
dore  sur  un  petit  peuple  des  ilcs  Lipari,  et  quclques  fantaisies  des 
poetes  latins  sur  I'age  d'or ;  vous  accumulez  ainsi  quelques  indices, 
mais  hativouient  recucillis,  impai'faitement  etudies,  pris  9a  et  la  en 
melant  les  c[)oqucs  ct  en  confondant  les  peuples.  Est-ce  assez  de 
cela  pour  dcduire  une  loi  generale  do  I'humanitc  ?  Une  telle  methode 
manque  de  rigucur.  La  comparison  entre  les  peuples  ne  devrait 
venir  qu'aprcs  une  etude  scrupuleuse  et  complete  de  chaque  peu- 
ple. L'analyse  doit  prcccder  la  synthcse.  Je  voudrais  que  I'his- 
toire  du  7nir  russe,  celle  du  village  indou  ou  javanais,  celle  de  la 
communaulc  agrieole  de  Croatie,  et  meme  celle  de  la  marke  germa- 
nique, fussent  plus  nettement  connues  qu'elles  ne  le  sont,  avant 
qu'on  tirat  du  rapprochement  de  ces  connaissances  une  conclusion 
generale.  Je  souhaiterais  qu'une  generation  de  travailleurs  s'appli- 
quat  separement  a  chacun  de  ces  objets  et  qu'on  laissat  a  la  gene- 
ration suivantc  le  soin  de  chercher  la  loi  qui  se  dcgagera,  peut-etre, 
de  CCS  etudes  particulieres." 

No  criticism  could  be  more  just,  no  advice  better  or  more  timelj". 


NOTES  AND  REFEEENCES.  219 

Note  145.— Page  67. 

The  reforence  is  to  Numbers  xxxvi.  Cf.  Tacitus  Germ.  17: 
prope  soli  barbarorum  singulis  uxoribus  contenti  sunt,  exceptis  ad- 
modum  paucis,  qui  non  libidine  scd  ob  nobilitatem  pluiiltus  nuptiis 
ambiiintur.  The  onl}-  rule  which  was  imposed  regarding  marriages 
was  that  the  husband  and  wife  should  be  of  equal  rank.  See  Ru- 
dolfi  Transl.  S.  Alex,  in  M.  G.  H.  Script.  11,  p.  GT.j  :  Quatuor 
igitur  differentiis  gens  ilia  consistit,  nobilium  scilicet  et  liberorum, 
libertorum  atque  servoi'um.  Et  id  legibus  firmatum  ut  nulla  pars 
in  copulandis  conjugiis  propriae  sortis  terminos  transferat,  sed 
nobilis  nobilem  ducat  uxorem  et  liber  liberam,  libertus  conjugatur 
libertae  et  servus  ancillae.  Si  vero  quispiam  horum  sibi  non  cou- 
gruentcm  et  genere  praestantiorem  duxerit  uxorem,  cum  vitae  suae 
damno  componat.  See  the  passage  of  Lib.  Eli.  cited  in  Thorpe  I. 
p.  192,  note  a  (Gale,  II.  c.  40). 

Intermarriages  between  clans  were  very  common.  This  propo- 
sition could  be  proved,  if  it  were  worth  while,  by  reference  to  par- 
ticular cases,  but  we  may  venture  to  take  it  for  granted. 

Note  146.  —  Page  67. 

Lex  Angl.  Werin.  VI :  De  alodibus,  8  :  Usque  ad  quintam  gene- 
rationem  paterna  generatio  succedat  [proximus  paternae  genera- 
tionis  consanguineus] .  Post  quintam  generationem  filia  ex  toto, 
sive  de  patris,  sive  de  matris  parte,  in  hereditatem  succedat,  et 
tunc  demura  hereditas  ad  fusura  a  lancea  transeat.  We  assume 
that  the  limit  of  collateral  inheritance  was  also  the  limit  of  the 
clan.  The  limit  of  the  clan  was  probabl}^  determined  b}^  the  limit 
of  collateral  inheritance.  Among  the  Lombards  the  clan  appears 
to  have  included  the  male  descendants  of  seven  successive  genera- 
tions. This  was  the  limit  for  collateral  inheritance.  See  Rotliar 
CLIII :  Omnis  parentela  usque  in  septimum  genuculum  numeretur, 
ut  parens  paronti  per  gradum  et  parentclam  heres  su(!cedat. 

Cf.  Lex  IJaiw.  XIV.  Cap.  IX.  4  :  (^uod  si  maritus  et  mulier  sine 
heredes  mortal  fuerint,  et  nullus  usfpie  ad  sei)tiinum  gradum  de 
propinciuis  et  quibuseunfjue  i)arcntibus  invenitur,  tune  illas  res 
fiscus  adquirat.  As  among  the  Lombards,  so  among  the  Bavarians, 
seven  generations  was  the  limit  of  collateral  inheritance.  It  was 
without  doubt  the  limit  of  llie  clan  as  well. 


220  EARLY  HISTORY  OF  LAXD-HOLDINa. 

The  subject  of  clan  relationships  and  collateral  inheritance  is, 
however,  very  dilfieult.  AVe  arc  by  no  means  sure  that  we  under- 
stand it.  The  records  bearing  upon  the  subject  are  few.  They  are 
vague  in  their  terms,  and  to  a  certain  extent  contradictory.  It  is 
doubtful  whether  any  defluite  general  conclusions  can  be  drawn 
from  them. 

Note  147.  — Page  68. 

We  have  alreadj^  seen  how,  at  the  time  of  Lex  Salica,  when  a 
man  died  without  sons,  the  neigh])ors,  vicini,  took  the  inheritance. 
We  have  seen  how  at  the  same  time  neighbors  were  regularly  kins- 
men, paretiteSi  proximi.  See  pp.  46-5G,  and  the  Notes  referred  to. 
The  classification  of  collateral  heirs  was  inaugurated,  apparentl3', 
by  the  Edict  of  Chilperic,  A.  D.  573-575.  See  passage  cited  in 
Note  122. 

We  are  speaking  here,  and  in  the  text  also,  of  the  right  of  inher- 
itance in  land.  We  are  not  speaking  of  the  right  of  inheritance  in 
movable  property. 

AVe  know,  from  Lex  Sal.  LIX.  De  alodis  1-4,  that  inheritances 
of  movable  propert}'  passed  from  the  family  of  the  deceased  to  dis- 
tant relatives  in  the  order  of  their  proximit}" :  quicumque  proxi- 
mior  fuerit  ille  in  hereditatem  succedat.  While  collateral  heirs  in 
land  remained  unclassified,  collateral  heirs  in  movable  property 
were,  it  appears,  very  carefuU}'  distinguished  one  from  another, 
according  to  relative  degrees  of  proximit\'.  This  is  \cvy  curious 
and  inexplicable.  What  is  still  more  curious  and  inexplicable, 
however,  is  the  fact  that,  when  collateral  heirs  in  land  came  to  be 
classified,  they  were  classified  without  reference  to  the  classification 
of  collateral  heirs  in  movable  propert}',  so  far  as  we  can  make  this 
clear  from  tlie  De  alodis. 

In  Lex  Sal.  LVIII  De  crenecruda,  still  another  classification  of 
relatives  is  hinted  at.  Reference  is  made  to  tres  de  generatione 
matris  et  tres  de  generatione  patris  qui  proximiores  sunt. 

After  much  puzzling  over  these  inconsistencies,  we  conclude  that 
it  is  impossible  to  explain  them  in  any  satisfactory  manner  under 
one  theor}- ;  that  it  is  best,  on  the  whole,  to  take  De  alodis  5  (qui 
fratres  fuerint  tota  terra  porteneat),  and  the  passage  (§  o)  of  the 
Edict  of  Chilperic  (referred  to  above),  and  to  consider  these  pas- 


NOTES  AND  REFERENCES.  221 

sages  by  themselves,  Tvithout  reference  to  De  alodis  1—1,  and  with- 
out reference  to  the  De  chrenecruda,  as  these  passages  appear  to 
have  no  direct  bearing  upon  the  question  of  inheritance  in  land. 

Accordingl}',  when  we  say  that  the  kinsmen  were  not  classified 
among  the  Franks,  as  among  the  Angli  and  Werini,  we  are  speaking 
of  them  as  heirs  in  the  land  simply.  "Without  this  qualification 
the  statement  is  of  course  open  to  criticism.  "We  ma^-  say,  once 
more,  what  we  have  said  before,  that  it  is  probably  impossible  to 
reach  an}-  ver}-  definite  conclusions  in  regard  to  clan  relationships 
and  collateral  inheritance  among  the  early  Germans.  "What  we 
have  said  upon  the  subject  has  accordingly  been  said  with  no  little 
dillidcnce. 

Note  148.  — Page  68. 

Lex  Sal.  LIX :  De  alodis.  Lex  Rip.  LVI :  De  alodibus.  It 
may  be  stated,  as  a  general  rule,  that  a  practice  is  not  forbidden 
until  it  actually  obtains,  or  has  its  advocates.  So,  wiien  we  read 
that  women  had  no  right  of  succession  in  the  ancestral  inheritance, 
we  may  assume  that  women  had  in  certain  instances  received  an- 
cestral inheritances,  or  else,  that  there  were  persons  who  desired 
that  they  might  receive  them. 

Note  149.  — Page  68. 

Formula  CXXXVI.  Cf.  Formula  CXXXV :  Dulcissima  atquc 
in  omnibus  amantissima  filia  mea  ilia,  ego  enim  vir  magnilicus  ille. 
Omnibus  non  habetur  incognitum  que,  sicut  lex  Salica  contenit, 
de  res  meas,  quod  mihi  de  alode  parentum  meorura  obvonit, 
apud  germanos  tuos  filios  meos  minime  in  hereditate  succidere 
potebas. 

Note  150.  — Page  69. 

According  to  the  Edict  of  Chilperic,  A.  D.  573-575,  cited  in 
Note  122. 

Note  151.  — Page  69. 

Lex  Alam.  LXXXVIU,  and  LVII :  Si  autem  duae  sororcs  abs- 
que fratre  relictae  post  mortem  patris  fuerint,  et  ad  ipsas  hereditas 


222  EARLY  HISTORY  OF  LAXD-HOLDING. 

patonuv  pcrtingat,  et  una  nupserit  sibi  coacqiKili  lihcro,  alia  autem 
uupserit  aut  colono  Regis  aut  colono  Ecclesiae,  ilia  quae  illi  libcro 
nupsit  sibi  coacquali,  teneat  tcrram  patris  earum.  lies  autem  alias 
aequaliter  dividant.  Ilia  eiiim  quae  illo  colono  iiupsit,  noa  intret 
iu  portiouem  terrae,  quia  coaequali  non  nupsit. 

Lex  liaiw.  XIV.  8  :  Ut  fratres  liereditatem  patris  aequaliter 
dividant.  Ibid.  9  :  De  eo  qui  sine  filiis  et  filiabus  mortuus  est, 
mulier  aeeipiat  portionem  suam,  dum  vi<luitatem  custodierit,  id  est, 
medietatcin  pecuniae.  Medietas  autem  ad  propinquos  mariti  per- 
tineat.  The  word  pecunia  is  used  to  describe  land  as  well  as  other 
property  ;  as  in  Cod.  Trad.  Lunaelac  XXXIII,  and  Fulda  Cod. 
35o  :  agris  sen  alia  pecunia. 

Lex  Sax.  VII.  1  :  Pater  aut  mater  defuncti  filio  non  liliae  haere- 
ditatem  relin(|uit.  Ibid.  5 :  Qui  defunctus  non  lilios,  sed  filias 
reli(iuerit,  ad  cas  omnis  haercditas  pertineat,  tutela  vero  earum 
fratri  vel  i)roxinio  puterni  gcneiis  deputetur. 

In  regard  to  England,  see  what  was  said  in  Note  77. 

Note  152.  —  Page  G9. 

Cassiodorus  Varia  IV.  2  :  Per  arma  fieri  posse  filium  .  .  .  Damus 
quidem  tibi  equos,  enses,  ch'peos,  et  reliqua  instrumenta  bellorum. 
Ibid.  VIII.  1  :  Vos  genitorem  meum  in  Italia  palmatae  claritate 
decorastis.  Desiderio  quoque  concordiae  factus  est  per  arma  filius, 
quiau  nis  nobis  [vobis  ?]  pene  videbatur  equaeuus  .  .  .  In  paren- 
telae  locum  [^riote  this]  noster  jam  transire  debet  affectus.  Nam 
ex  filio  vestro  gcnitus,  naturae  legibus  vobis  non  habetur  extraneus. 
See  also  Ibid.  VIII.  9  :  solum  armis  filius  factus  .  .   . 

Cf.  Tacitus  Germ.  13  :  Sed  arma  sumere  non  ante  cuiquam  moris 
quam  civitas  suffecturum  probaverit.  Turn  in  concilio  vel  princi- 
pum  aliquis  vel  pater  vel  propinqui  scuto  IVameaque  juvenem 
ornant :  liacc  apud  illos  toga,  hie  primus  juventae  honos  ;  ante  hoc 
domus  pars  vidcntur,  mox  rei  publicae. 

In  Formula  CXXXIV  we  have  grandsons  adopted  into  a  right 
of  inheritance  in  lands,  houses,  and  other  things,  —  terris,  domibus, 
et  cetera.  Qnidquid  in  jam  dicto  loco  genitor  vcstcr  et  filios  meos 
illos  et  illas  dividere  et  exscquare  dcberct,  vos  quoque,  nepotes 
Tuei,  jx'r  banc  alTatiuuun  post  [diem]  obitus  mci  dividere  [et]  exsc- 
quare faciatis. 


NOTES  AND  REFERENCES.  223 

See  also  Formula  CXVII :  Si  quis  cxtranco  hominc  in  loco  filio- 
rum  adoptaverit ;  and  CXVIII :  Si  quis  in  loco  filii  aliquem  adop- 
tare  voluerit ;  and  Formulae  CLXVIII,  CLXXII.  Then  read 
Capitulare  IV,  A.  D.  803,  vii :  Qui  filios  non  habuerit,  et  alium 
quemlibct  heredem  faeere  sibi  voluerit,  coram  Rogc  vel  Comitc 
et  Scabiniis  vel  IMissis  dominicis,  qui  tunc  ad  justitias  faciendas  in 
provincia  fuerint  ordinati,  traditionem  faciat. 

A  similar  practice  appears  to  have  obtained  in  England.  See  Lib. 
de  Ilyd.  p.  7 :  egressus  dc  fonte  loco  fdii  susceptus  est  [Athehvol- 
dus].  In  cujus  signum  adoptionis  Ulfere,  rex  Merciorum,  duas 
illi  provincias  donavit.  .  .  .  Reference  is  made  to  an  adopted 
relative,  adoptivo  jmrenti,  in  Abingdon  Chron.  I,  p.  205. 

Note  153,  —  Page  70. 

Lex  Sal.  XLVI :  De  afTatomie.  1.  Hoc  convenit  observare  ut 
thunginus  aut  centenarius  mallo  indicant  et  scutum  in  illo  mallo 
habere  debent  et  tres  homines  tres  causas  dcmandare  debent. 
Postea  requirent  hominem  qui  ei  non  perteneat  et  sic  fistucam 
in  laisum  jactet.  Et  ipse  in  cui  laisum  fistucam  jactavit,  de 
furtuna  sua  dicat  verbum  quantum  voluerit  aut  totam  furtunam 
suam  cui  voluerit  dare.  Ipse  in  cujns  laisum  fistucam  jactavit, 
in  casa  ipsius  manere  debet.  Et  hospites  tres  vel  amplius  colle- 
gere  debet  et  de  facultatem  quantum  ei  creditum  est  in  potesta- 
tem  suam  habere  debet.  Et  postea  ipse  cui  isto  creditum  est,  ista 
omnia  cum  tostibus  collectis  agere  debet.  Postea  aut  ante  rege 
aut  in  mallo  illi  cui  fiu-tuna  sua  depotavit  reddere  debet  et  accipiat 
fistucam  in  mallo  ipso.  Ante  xii  menses  quos  heredes  appellavit 
in  laisum  jactet ;  nee  minus  nee  majus  nisi  quantum  ei  creditum 
est.  2.  Et  si  contra  hoc  aliquis  aliquid  dicere  A'oluerit,  debent  tres 
testes  jurati  dicere  quod  ibi  fuissent  in  mallo  quem  thunginus  aut 
centenarius  indixerit  et  quomodo  vidissont  hominem  ilium  qui  fur- 
tuna  sua  dare  voluerit  in  laisum  illius  quem  jam  elegit  fistucam 
jactare  :  debent  denominare  illo  qui  fortuna  sua  in  laiso  jactat  et  illo 
quem  heredem  appellit  similiter  nominent.  Et  alteri  tres  testes 
jurati  dicere  debent  quod  in  easa  illius  qui  furtuna  sua  donavit  illc 
in  cujus  laisu  fistuca  jactata  est  ibidem  mansisset  et  hospites  tres 
vel  amplius  ibidem  collegisset  et  in  beodum  pultis  manducassent  et 
testes  collegissent  et  illi  hospites  ei  dc  susccptione  gratias  egissent. 


224  EARLY  HISTORY  OF  LAND-HOLDING. 

Ista  omnia  illi  alii  testis  jurato  dicerc  dcbcnt  et  hoc,  quod  in  mallo 
ante  regem  vel  legitime  mallo  publico  ille,  qui  accepit  in  laisum 
furtuna  ipsa  aut  ante  regem  aut  in  mallo  })ublico  legitiino  hoc  est 
in  luallobergo  ante  teoda  aut  thunginum  furtunam  illam,  quos 
heredes  appellavit  publice  coram  populo  fistucam  in  laiso  jactasset ; 
hoc  est  novem  testes  ista  omnia  debent  adfirmare. 

Some  of  this  passage  is  almost  unintelligible.  The  gist  of  it, 
however,  may  be  gathered  out.  It  is  an  adoption  {adoptio)  ef- 
fected by  means  of  an  alienation  of  property  (traditio) .  Cf.  the 
passage  cited,  in  Note  152,  from  the  Capitulare  IV  of  A.  D.  803. 

Note  154.  —  Page  70. 

Lex  Eip.  XLVIII :  Si  quis  procreationem  filiorum  vel  filiarura 
non  habuerit,  omnem  facultatem  suam  in  praesentia  Regis,  sive  vir 
mulieri,  vel  mulier  viro,  sen  cuicunque  libet  de  proximis  vel  extra- 
neis  adoptare  in  hereditatem  vel  adfatimi  per  scripturarum  seriem 
seu  per  traditionem,  et  testibus  adhibitis  secundum  legem  Ripua- 
riam  licentiam  habeat. 

Ibid.  XLIX:  Quod  si  adfatimus  fuerit  inter  virum  et  mulierum, 
post  discessum  amborum  ad  legitimos  heredes  revertatur,  nisi  tan- 
tum,  qui  parem  suum  supcrvixerit,  in  cleemosjma  vel  in  sua  neces- 
sitate expenderit. 

Note  155.  —  Page  71. 

Formula  CXXXIV :  AfTatimum.  Dulcissimis  ncpotis  meis  illis, 
ego  avus  aut  ego  ille.  Dum  et  cognitum  est  qualitei  gciiitor  vester 
et  filius  mens,  nomine  illo,  complcnta  fine  naturae,  de  hac  luce  dis- 
cessit,  et  vos  in  alode  minime  accederc  poteratis,  ideo  pensantes 
causa  consanguinitatis  dabo  vobis  per  banc  affatimum  omni  pro- 
portionc  in  loco  nuncupante  illo,  in  pago  illo,  in  cent(>na  ilia,  hoc 
est  in  lam  dicto  loco  tam  terris,  domibus,  et  cetera.  Quicquid  in 
iam  dicto  loco  genitor  vester  et  filios  meos  illos  et  illas  dividere  et 
exsequare  deberet,  vos  quoque,  ncpotes  mei,  per  banc  affatimum 
post  [diem]  obitus  mei  dividere  [et]  exsequare  faciatis.  Illud 
etiam  in  banc  affatimum  conscribcre  rogavimus,  ut  si  fuerit  aliquis 
de  heredibus  meis  propinquos,  avunculos  vestros,  aut  de  aliis  here- 
dibus,  vel  quislibet  in  corum  causas,  nulla  caluinnia  ncc  repetitione 


NOTES   AXD   REFERENCES.  225 

generare  non  pracsumat,  sed  iurc  lirmissiuio  in  oninilnis  habeatis 
potestatem  faciendi,  tencndi,  dandi,  commutandi,  vel  quieqiiid 
exinde  faeere  elegeritis,  liberam  in  onniibus  perfruatur  potestas 
faciendi.  Sed  si  fuerit  aliquis  de  lieredibus  meis,  qui  contra  lianc 
affatimum  venire  aut  refragare  praesumpserit,  socio  fisco  solidos 
tantos  contra  qucm  litem  intulerit  suis  partibus  multa  componat,  et 
ille  qui  repetit  nihil  vindicet  sed  praesens  affatinius  diuturnum  tem- 
pore firmus  et  inviolatus  valeat  permanere,  quam  manu  propria 
subterfirmavimus  et  bonis  operibus  viris  magnificis  roborare  decre- 
vimus. 

Note  156.  — Page  71. 

Formula  CCLVI.  Hist.  Frising.  DCVII.  Cf.  also  Formulae 
CCLV  and  CCLVITI :  per  banc  titulum  traditionis,  vel  per  servo 
mco,  et  per  hostium  de  ipsas  domus,  et  cispitae  de  ilia  terra,  seu 
vitis  de  ipsas  vineas,  et  ramos  de  illas  arbores  ;  et  quantumcum- 
que  in  ipsa  donatione  continet ;  id  sunt  tam  terris,  viueis,  pratis, 
silvis,  exenis,  aiacentiis,  omnia  ex  omnibus,  sicut  in  ilia  donatione 
loquitur  vel  in  ista  traditione  insertum  est.  See  also  No.  VI. 
of  the  Capitularia  in  lege  salica  mittenda  (Merkel  p.  47)  :  De 
his  qui  ad  casam  Dei  res  suas  tradere  voluerint  .  .  .  domi  tradi- 
tionem  faciat  coram  testibus  Icgitimis. 

According  to  Lex  Sal.  LVIII,  De  chrenecruda,  the  debtor  for 
homicide,  having  no  movable  property,  supra  terra  nee  suhtus  terra, 
with  which  to  pa}'  his  debt,  has  to  mortgage  his  land.  This  he  does 
by  a  procedure  in  his  house,  and  upon  the  threshold  of  it,  looking 
into  it :  et  postea  debet  in  casa  sua  intrare  et  de  quatuor  angulos 
terra  in  pugno  collegere,  et  sic  postea  in  duropalo  hoc  est  in  limitare 
stare  debet  et  intus  in  casa  respiciens  et  sic  de  sinistra  manu  de 
ilia  terra  trans  scapulas  jactare  super  ilium  quem  proximiorem 
parentem  habet.  The  nearest  relative,  or  relatives,  took  the  mort- 
gage and  paid  the  debt,  if  they  could,  rather  than  allow  a  stranger 
to  come  into  possession  of  an}-  of  the  clan  land.  Of  course  it  was 
very  undesirable  to  allow  the  heirs  of  him  who  had  been  murdered 
or  killed  to  come  into  the  possession  of  any  of  it.  In  connection 
with  the  De  chrenecruda,  it  is  worth  while  to  read  the  Capitulary  of 
Childebert,  A.  D.  595,  §  15  :  Dechrcncchruda  lex.  (juani  paganorum 
temi)ore  observabant,  deinceps  nunquam  valeat,  quia  per  i[)sam 
cecidit  multorura  potestas. 

15 


226  EARLY   HISTORY   OF   LAND-HOLDING. 

It  appears,  from  the  passages  cited,  that  the  casa  was  the  regular 
place  for  alienations  of  land.  It  cannot,  therefore,  be  maintained 
that  the  De  uffatomie  procedure  was  employed  for  the  alienation  of 
movable  propert}-  onh',  on  the  groinul  that  property  in  land  would 
not  be  alienated  in  casa. 

Before  leaving  this  point  we  may  refer  the  reader  to  the  interest- 
ing passage  of  the  Lex  Alam.,  from  which  it  appears  that  a  man 
received  an  inheritance  from  his  wife  who  had  died  in  childbirth, 
onl}'  in  case  the  child  had  opened  its  e3'es  to  see  the  roof  and  four 
walls  of  the  house,  —  Lex  Alam.  XCII. 

Note  157.  — Page  72. 

Diplomata  IMcrowing.  12.  For  other  examples  of  the  use  of  the 
woi'd  facultas  to  describe  landed  propert}^,  see  Fulda  Trad.  Cap. 
4.  74  and  127;  Cap.  39.  73;  Beyer  Urkb.  G;  Trad.  ^Yiz.  CCII ; 
Cod.  S.  Galli  19  and  199  :  facultates  meas  excepto  ima  silva  et 
pratum.  The  ancestral  inheritance  is  described  by  the  word  facul- 
tas in  Lex  Burg.  LXXV,  Lex  AYisig.  IV.  Tit.  II.  1,  and  elsewhere. 

Note  158.  — Page  72. 

Fulda  Cod.  355 :  agris  seu  alia  pecunia.  Kemble's  Codex 
DCXXI :  X  mansas  .  .  .  numinis  mei  particulam.  See  also  Cod. 
Trad.  Lunaelae  XXXIII,  where  the  word  pecunia  is  used  to  de- 
scribe a  curtcm  cum  domos,  terram,  pratas,  rures,  campos,  silvas, 
aquas,  cultum  et  incullum,  etc. 

Note  159. —Page  73. 

See   Formulae  CXXXIV,   CLXVIII,    CXXXI,   CXXXII,  and 

CXXXIII.  Until  the  principle  of  representation  was  admitted, 
fatherless  grandsons  were  constantly  adopted  into  the  inheritances 
of  their  respective  fathers.  For  a  long  time  a  man  was  expected, 
if  he  gave  away  his  property,  to  give  it  either  to  the  Church,  or  to 
increase  the  possessions  of  his  kinsmen.  See  Formula  CLXXI. 
The  passage  referred  to  will  be  cited  in  Note  161. 

Note  160.  —  Page  73. 
See  Notes  152-154. 


NOTES  AND  REFEEEXCES.  227 

Note  IGl.  — Page  73. 

Formulu  CLXXI :  Licet  unicuique  de  rebus  suis  quas  in  presente 
seculo  viditur  [habere],  tani  ad  sanctorum  loca  seu  parentuni  melio- 
rare,  et  lex  manet  et  consuetude  lougiuquaiu  percurrit  facere  quod 
voluerit. 

Note  162.  — Page  73. 

Hist.  Trev.  XXXII  (A.  D.  709),  XXXIV  (A.  D.  711),  XXXV 
(A.  D.  712).  Ttie  alienation  of  Folker  secundum  Legem  Ripuariam 
et  Salicam  is  given  in  Miinst.  Beitr.  II.  Num.  III.  See  also  For- 
mula CCXXXI :  dono  tibi  donatumque  secundum  legem  Salicam 
in  tua  dote  a  die  praescnti  jure  legitime  in  perpetuum  esse  volo,  et 
de  meo  in  tuum  jus  et  dominationem  trado  atque  transcribo,  hoc 
est  mansum  juris  mei  indominicatum,  cum  aliis  mansis  servilibus, 
silvis,  pratis,  carapis,  etc.  The  conclusion  at  which  we  arrived, 
that  land  was  alienable  according  to  Lex  Salica,  is  by  these  records 
conipleteh'  verified. 

In  Diplomata  Merowing.  15,  of  the  date  A.  D.  G3o,  a  man  named 
Dado  alienates  certain  lands  to  the  Church  per  festuca,  and  it  is  re- 
corded that  his  brother  and  his  futlier  had  done  lilvewise,  before 
him.  This  takes  the  practice  of  alienating  land  back  quite  to  the 
time  of  Lex  Salica.  The  fact  that  the  land  was  alienated  per 
festuca  takes  us  to  the  passage  De  affatomie.  Tlie  procedure  of 
the  Dc  affatomie  was  certainly  used  for  alienating  land. 

Tliat  the  right  to  alienate  land  was  exercised  freely  everywhere, 
from  the  time  of  Lex  Salica  on,  is  proved  by  the  concurrent  testi- 
mony of  Folk-Laws,  Formulae,  and  Documents.  No  fact  is  more 
clearly  recorded,  more  indisputable,  than  this. 

Note  1G3.  — Page  74. 

Lex  Sax.  XV:  De  traditionibus.  1.  Traditioncs  et  vcnditioncs 
omnes  legitimae,  stabiles  permaneant.  2.  NuUi  liceat  traditionem 
haereditatis  suae  facere,  praeter  ad  Ecclesiam,  vel  Regi,  ut  haerc- 
dera  suum  exhaeredem  faciat.  3.  Nisi  forte  famis  necessitate  co- 
actus,  ut  ab  illo,  qui  hoc  acceperit,  sustentetur,  mancipia  liceat  illi 
dare  ac  vendere.     Rothar  CLXVIII. 


228  EARLY  HISTORY  OF  LAXD-HOLDING. 

Note  164.  —  Page  74. 

The  consent  of  heirs  is  very  often  referred  to  in  grants  of  land. 
See  Beyer  Urkb.  341  :  filiorumqiie  ineorum  consensu,  ceterorum- 
"que  mei  amicorum  suggestione.  Osnabrk.  Gesch.  XLIV :  con- 
sensu et  coUaudatione  legitimorum  heredura  suorum.  Ibid.  XLVII : 
landantibus  et  consentientibus  duobus  eorura  filiis.  Wirtemb.  Urkb. 
CCLXIII :  liberis  meis  consentientibus.  Lisch.  Urkb.  XXVIII : 
cunctis  heredibus  sibi  consentibus.  Ibid.  LXVI :  de  pleno  con- 
sensu heredum  nostrorum,  filiorum  nostrorum  videlicet  ac  filiorum 
fratris  nostri. 

Hist.  Frising.  I.  p.  35  (53?)  :  propriara  portionem  quam  de  fra- 
tribus  meis  recepi  dono  atque  transfundo,  per  consensum  fratrum 
meorum,  colonias  vim.  See  also  the  references  given  under  Note 
129. 

Note  165.  —  Page  74. 

The  evidence  for  this  statement  may  be  found  on  p.  55  and  in 
Note  129. 

Note  166.  — Page  74. 

Lex  Burg.  LXXXIV  :  1.  Quia  cognovimus  Burgundiones  sortes 
suas  nimia  facilitate  distrahere,  hoc  praesenti  lege  credidimus  sta- 
tuendum,  ut  nulli  venderc  terram  suam  liceat,  nisi  illi  qui  alio  loco 
sortem  aut  possessiones  habet.  2.  Hoc  etiam  interdictum,  ut 
quisque  habens  alibi  terram,  vendendi  necessitatem  habet,  in  com- 
paraiulo,  quam  Burgundio  venalem  habet,  nullus  extraneus  Romano 
hospiti  praeponatur  nee  extraneo  per  quodlibet  argumentum  terram 
liceat  comparare. 

Note  167.  — Page  74. 

Lex  Burg.  1 :  1 .  Quia  niliil  de  praestita  patribus  donaudi  lieentia 
vel  munificentia  dominantium  legibus  fuerat  constitutum,  praesenti 
constitutione  omnium  uno  voto  et  voluntate  decrevimus,  ut  patri 
etiam  antequam  dividat,  de  communi  facultate  et  de  labore  suo 
cuilibet  donare  liceat,  absque  terra  sortis  titulo  aequisita,  de  qua 
prioris  legis  ordo  servabitur.     2.  Aut  si  cum  filiis  diviserit,  et  por- 


NOTES  AND  REFERENCES.  229 

tionem  suam  tiilerit,  ct  postea  de  alia  uxore  filios  halnicrit  aut  unura 
aut  pliires,  illi  filii,  qui  de  sccunda  uxore  sunt,  in  illam,  quam  pater 
accepit,  portionem  suecedant :  et  illi,  qui  cum  patre  dividentes  por- 
tiones  suas  fuerant  consecuti,  ab  eis  penitus  nihil  requirant. 

Ibid.  LXX\'III :  De  hereditatum  successione  adtcntius  pertrae- 
tantes  statiiiunis,  ut  si  pater  cum  liliis  sortem  suam  diviserit,  et 
postea  mori  filiuin  vivo  patre  contigcrit  sine  filiis,  pater  facultatum 
filii  intogram  usafruetuario  iurc  vindicet  portionem :  quam  inter 
filios  et  nepotes  ita  moriens  dimittat,  ut  quanti  nepotes  ex  uno 
filio  fuerint  qui  patrein  non  habent,  portionem  patris  sui  viiidi- 
cent,  qaalem  pater  corum  liabiturus  erat.  Illam  vcro  partem,  quam 
pater  cum  filiis  dividendam  habuisset,  superstitibus  Oliis  derelin- 
quat,  et  nepotes  in  earn  partem  non  suecedant.  Praesens  tamen 
lex  ad  masculos  tantummodo  pertinebit. 

Lex  Baiw.  I.  1  :  Ut  si  quis  liber  Baiuarius  vel  quiscumque  alo- 
dem  suam  ad  Ecclesiam  vel  quamcunque  rem  donare  voluerit,  libe- 
ram  habeat  potestatem.  Ut  si  quis  liber  persona  voluerit  et  dederit 
res  suas  ad  Ecclesiam  pro  redemptione  animae  suae,  licentiam  ha- 
beat de  portione  sua,  postquam  cum  filiis  suis  pertivit.  Nullus  eum 
prohibeat,  non  Rex,  non  Dux,  nee  ulla  pei'sona  habeat  potestatem 
prohibendi  ei.  Et  quicquid  donaverit,  villas,  terram,  maneipia,  vel 
alifiuam  pecuniam,  omnia  quaecunque  donaverit  pro  redemptione 
animae  suae,  hoc  per  epistolam  confirmet  propria  manu  sua  ipse, 
et  testes  adhibeat  sex  vel  amplius  si  voluerit,  et  imponat  manus 
suas  in  epistola,  et  nomina  eoruni  notent  ibi  quos  ipse  roga- 
verit. 

Cf.  Trad.  Wiz.  CLII:  jurnalcs  terre  xxxx  quas  contra  hercdes 
meos  mihi  pareiendo  sors  contulit.  Cod.  S.  Galli  3G0  :  quicquid 
contra  filios  meos  in  portionem  etin  meam  swascarain  accepi.  Hist. 
Frising.  CLXXXVIII :  tradidit  quidquid  in  suam  partem  ei  evenit 
hereditatis,  quando  cum  filiis  partivit.  Ibid.  DLVIII  (b)  :  quic- 
quid de  patre  vel  fratre  suo  in  proprietatem  divisum  ab  illis  acce- 
pisset.  See  also  Ibid.  CXII,  CXV,  DCVII,  and  INIon.  Scheftl. 
p.  304  :  tradidi  ego  Atto  et  filius  mens  Ammo  que  nol)is  in  partem 
contigerunt,  quando  divisimus  cum  Albrico  filio  ineo  omnia.  A 
great  many  more  cases  might  be  adduced,  but  these  will  suffice. 


230  EARLY  HISTORY  OF  LAND-HOLDING. 

Note  168.  — Page  75. 

See  Grimm  Eechtsalt.,  2d  ed.,  p.  530.  See  also  Prof.  Ilanssen's 
''  Abhandhiiigen,"  p.  48,  note  ;  where  he  refers  to  Jiit.  Low  I.  34, 
and  Erich-seel.  Ges.  III.  2.  M.  Paul  Viollet  cites  an  interesting 
passage  from  the  Guta-Lagh  in  his  article  in  the  Bibliotheque  de 
I'Ecole  des  Chartes,  Vol.  XXXIIL,  1872.  We  have  not  ourselves 
had  access  to  these  records.  The  prior  right  of  purchase  which 
neighbors  obtained  must  have  been  based  upon  the  opinion,  that  of 
two  prospective  purchasers  the  neighbor  should  be  preferred  to  the 
stranger,  —  an  opinion  which  naturally  recommends  itself  where  the 
population  is  increasing  and  inheritances  are  small.  The  right  had 
its  raison  d'etre  in  economic  conditions  which  are  known  to  have 
existed  in  many  places  during  the  Middle  Ages. 

Note  169.  — Page  76. 

See  Lex  Sal. :  De  migrantibus,  in  Note  125.  Cf.  Coutum.  d'Or- 
leans  CCCCLXXXVl :  On  acquiert  possession  d'heritage,  droict 
corporel  ou  incorporel,  en  jouissaut  par  an  et  jour.  See  Coutum. 
Gen.  III.  p.  807.  See  also  Ibid.  p.  37  ;  Coutum.  de  Paris  XCVI. 
So  in  the  Coutumes  de  Beauvoisis  (Beaumanoir,  Cap.  XXIV.  4)  : 
Uzages  de  an  et  jor  pesiblement  soufist  a  aquerre  saizine. 

Note  170.  —  Page  76. 

Twelve  Tables  VI.  3  (in  Ortolan,  Instituts  de  Justinien,  9th 
ed.,  Vol.  I.  p.  110)  :  Usus  auctoritas  fundi  bienuium.  Cf.  Gains  II. 
42  ;  Ulpian  XIX.  8. 

Note  171.  —  Page  76. 

Lex  Burg.  Add.  I.  Tit.  I.  1,  3:  Observandum  viam  publicam, 
vel  inter  agros  communiter  divisam  nee  possideri,  nee  intercludi, 
nee  exartari  posse  .  .  .  viam  in  actum,  hoc  est  ubi  earpenta  vel 
carra  ducuntur,  biennio  amitti  et  adquiri  posse. 

Note  172.  — Page  76. 

The  passage  cited  in  the  text  is  from  Lex  Wisig.  X.  Tit.  II.  5. 
See  also  Lex  Burg.  LXXIX :  De  praescriptione  tcmporum. 


NOTES  AND  REFERENCES.  231 

Note  173.— Page  77. 
Rothar  CCXXXI,  and  Grimoald  IV,  given  in  Note  56. 

Note  174.  —  Page  77. 
See  Notes  o3-G0. 

Note  175. —  Page  78. 

The  proprietors  in  the  village  were  called  shareholders,  participes 
villae.  See  Greg.  Turon.  VII.  47  :  Cum  autem  haec  Chramnisindus 
audisset,  commonitis  parentibus  et  amicis,  ad  domum  ejus  [Sicha- 
rii]  properat.  Quibus  spoliatis,  interemtis  nonnullis  servorum, 
domus  omncs,  tarn  Sicharii  quam  reliquorum,  qui  participes  hujus 
villae  erant,  incendio  concremavit,  abducens  secum  pecora  et  quae- 
cumqne  movere  potuit.  We  get  a  glimpse  of  the  Teutonic  village 
in  this  passage. 

Note  176.  —  Page  79. 

If  it  were  not  for  the  statement  of  Tacitus,  in  Germ.  16,  colnnt 
discreti  ac  diversi  utfons  ut  campus  ut  7iemus  placw't,  we  might  infer 
that  the  freemen  who  had  onl}'  a  few  slaves  settled  down  in  vil- 
lage groups  ;  that  thev  built  houses  for  themselves  and  houses  for 
their  slaves  ;  that  arable  lots,  agri,  were  marked  off,  one  for  ever}' 
■freeman  and  one  for  ever}'  slave ;  that  the  freeman  in  the  village 
had  one  lot  for  himself  and  one  for  each  of  his  slaves  ;  that  the 
slaves  cultivated  their  own  lots,  and  those  of  their  respective  lords 
as  well.  In  view  of  the  statement,  cohint  discreti  oc  diversi,  how- 
ever, we  are  not  at  liberty  to  suppose  that  the  freemen  settled 
down  in  village  groups.  Such  villages  as  there  were  must  have 
been  villages  of  dependants  or  slaves  connected  with  tlie  isolated 
farmsteads,  the  Eiiizelhofe,  of  different  free-lords.  There  were, 
accordingly,  no  independent  free  village  communities  in  Tacitus's 
time.  As  soon,  however,  as  the  migrations  were  over  and  settle- 
ments were  permanent,  heirs  began  to  multiply  upon  the  isolated 
domains,  and  we  have  consequently  house  comnuuiities,  and  then 
clan  villages.     In  this  wav  village  life  was  introduced  amons  the 


232  EARLY   HISTORY   OF  LAXD-IIOLDIXG. 

freemen.  Then  new  villages  were  founded,  in  the  manner  de- 
scribed. Several  freemen  went  out  together,  built  houses  for  them- 
selves and  houses  for  their  dependents  and  slaves,  and  took  shares 
in  the  land  according  to  the  number  of  houses  (mansi)  each  one 
owned.  Each  of  the  free  proprietors  in  the  village  then  owned  one, 
two,  or  more  mansi,  cum  campis,  prntis,  pascuis,  silvis,  aquis,  etc. 
The  portio  in  villa  is  regularly  described  by  this  formula,  or  some 
equivalent. 

Note  177.  —  Page  80. 

See  the  maps  in  Prof.  Mcitzcn's  introduction  to  Cod.  Dipl.  Siles. 
IV.  pp.  72,  82.  The  same  maps  are  given  in  his  statistical  work, 
Der  Boden  des  Preussischen  Staates,  I.  pp.  358,  3G0,  and  in  an 
article  in  the  Jahrb.  fur  Xationalokonomie  und  Stutistik,  Jahrg. 
XVII.  Bd.  I.  See  also  the  map  in  Schroder's  xsiederliindischen 
Kolonien  (Berlin,  1880,  8°),  —  Flurkarte  der  Dorfer  Borstel  und 
Wester- Jork, 

Note  178. — Page  81. 

In  regard  to  the  division  and  distribution  of  arable  lots,  see 
pp.  0-8  and  the  Notes  referred  to.  In  addition  to  the  passages 
cited  in  Note  13,  the  student  should  read  the  following  passage 
from  Lex  Wisig.  X.  Tit.  I.  14  :  Si  inter  eum  qui  accipit  terras  vcl 
silvas,  et  qui  praestitit,  de  spatio  unde  praestiterit,  fuerit  orta  con- 
tentio :  tunc  si  superest  ii)se  qui  praestitit,  aut  si  certe  mortuus 
fuerit,  eius  liercdes  pracbcant  siicramenta,  quod  non  amplius  auctor 
eorum  dederit,  quam  ipsi  designanter  osteudunt ;  et  sic  posteaquam 
iuraA'crint,  praesentibus  testibus  quae  observontur  signa  constitu- 
ant :  ut  pro  ea  re  nulla  deinceps  accedat  caussatio.  Si  vcro  con- 
sortes  eius  non  dignentur  iurare  aut  forte  noluerint :  vel  aliquam 
dubietatera  habuerint,  quantum  vcl  ipsi  dedcrint,  vel  antccessores 
eorum  :  ipsi  ut  animas  suas  non  condcmpncnt,  nee  sacramentum 
praestent :  sed  ad  tota  aratra,  qnantum  ipsi  vel  parentes  eorum  in 
sua  sorte  suscepcrant,  per  singula  aratra  quinquagenos  aripennes 
dare  debent.  Ea  taraen  conditione,  ut  quantum  occupatum  habue- 
rint, vel  cultum  mixii  quinquaginta  aripennes  concludant ;  nee  plus 
quam  in  eisdem  mensuratum  fuerat  aut  ostensum,  nisi  terrarum 
dominus  forte  praestiterit,  audeant  usurpare.  Quod  vero  amplius 
usurpavcrint,  in  dui)lum  reddant  invasa. 


NOTES  AND  REFERENCES.  233 

Note  179.  — Page  81. 

See  Commons  Inclosure  Report  of  1844,  No.  29G  (p.  27),  and 
Nos.  372-583  (pp.  35,  30). 

Note  180.  — Page  82. 
See  pp.  21,  22,  and  Notes  53-60. 

Note  181. —Page  88. 

There  is  little  or  no  evidence  that  redistributions  of  the  same 
land  among  the  same  persons,  or  representatives,  took  place  in  the 
early  period.  The  custom  was  introduced  here  and  there,  we 
cannot  sa}'  when,  and  in  certain  places  it  has  survived  down  to  our 
own  time.  It  is  doubtful  whether  we  have  an}- right  to  argue  from 
the  modern  instances  that  the  custom  is  an  ancient  one  ;  and  per- 
haps the  custom  was  introduced  in  the  tenant  communities  only, 
and  not  at  all  among  free  proprietors. 

Note  182.  — Page  83. 

The  rotation  s3-stem  is  one  of  the  man}-  institutions  which  have 
been,  in  their  origin,  remedies  against  violence,  devices  to  prevent 
quarrelling  and  fighting,  or  compromises  to  reconcile  conflicting 
claims.  It  was  an  improvement  on  redistributions  b}-  lot ;  and  re- 
distributions b}-  lot  were  an  improvement  on  the  grab-s^-stem  which 
obtained  generally  in  the  early  period.  It  is  probable  that  redis- 
tributions by  lot  and  the  rotation  system  originated  in  the  tenant 
colonies.  In  that  case  they  were  introduced  by  adoption  into  the 
colonies  of  freemen. 

It  is  possible,  however,  that  the  rotation  system  was  introduced 
into  the  tenant  communities  onh',  and  not  at  all  among  the  free 
proprietors.  There  is  no  evidence  of  the  existence  of  the  system 
in  any  early  records.  It  appears  to  have  been  introduced  during 
the  Middle  Ages.  We  cannot  say  when.  The  custom  has  survived 
in  certain  i)laces  to  our  own  time.     That  is  all  we  know  about  it. 


234  EARLY  HISTORY  OF  LAiSID-HOLDING. 

Note  183.  —  Page  83. 
See  Mr.  Elton's  Observations  on  the  Commons  Bill,  187G,  p.  38. 

Note  184.  — Page  84. 

See  Notes  20,  21,  92,  96,  97,  and  the  pages  of  the  text  re- 
ferred to. 

Note  185.  —  Page  84. 

See  note  22.  In  regard  to  the  "marks"  used  in  casting  lots, 
see,  besides  the  writings  referred  to  in  Note  22,  Mr.  Benjamin- 
Williams's  articles  in  the  Archaeologia,  vol.  35,  p.  471,  and  vol.  37, 
p.  382  ;  also  A.  L.  J.  Miehclsen's  llausmarke,  Jena,  1853. 

It  must  be  remembered  tluit  the  free  colony  we  are  describing 
was  cast  in  the  mould  of  the  tenant  colony  of  earlier  time,  and 
what  is  true  of  the  one  is  probably  true  of  the  other.  During  the 
Middle  Ages  the  free  colonies  became,  in  most  cases,  subject  to 
over-lords  ;  either  by  being  conquered,  or  in  consequence  of  a  vol- 
untary surrender  of  independence  for  the  sake  of  the  protection 
which  the  over-lords  offered  in  return.  We  have  then  only  the 
tenant  colonies  ;  and  we  cannot  say  which  of  them  were  in  their 
origin  colonies  of  proprietors. 

Note  186. —Page  84. 

See  Ine  42  :  If  ceorls  [i.  e.  husbandmen]  have  a  common  meadow 
or  other  partible  land  {gedal-Iand)  to  enclose,  and  some  have  en- 
closed their  portion  and  some  have  neglected  to  do  this,  and  [cattle 
come  in]  and  eat  the  grass  ;  let  those  go  who  own  the  gai)  and  com- 
pensate the  others  for  the  damage  done.  Then  they  may  demand 
such  justice  on  the  cattle  as  may  be  right.  The  landholders  took 
equal  portions  of  the  fence  or  enclosure  only  when  they  held  equal 
shares  of  the  land  enclosed.  If  the  land  was  distributed  in  un- 
equal shares,  the  burden  of  fencing  and  enclosing  was  distributed 
accordingly. 


NOTES  AND  REFERENCES.  235 

Note  187.  — Page  84. 

The  best  source  of  information  upon  this  point  is  the  Commons 
Inclosure  Report  of  1844.  See  especially  Nos.  293-300,  the  testi- 
mony of  W.  Blamire,  Esq. 

Note  188.  — Page  85. 
See  Notes  25,  93,  9G,  98. 

Note  189.  — Page  85. 
.     See  Notes  94,  9G,  99,  100. 

Note  190.  — Page  85. 
See  Note  20. 

Note  191.  — Page  86. 
Lex  Sal.  XXVII.  9. 

Note  192.  —  Page  86. 

See  Lacomblet  Urkb.  Gl  :  hoc  est  quod  traclidi  in  pago  Sutrachi, 
in  villa  que  dicitur  Aldgrepeshem,  terram  xx  auimalium  et  dirai- 
dium  unius,  et  in  alia  villa  terram  xv  animalium.  In  such  cases, 
it  is  probable  that  the  pasture  was  divided  into  severalties  ;  that  it 
was  a  common  pastui'e,  however,  in  spite  of  this  fact.  Tiiat  is  to 
sa}',  it  was  unenclosed. 

The  severalties  were  unenclosed  and  the  animals  ranged  at  large. 
At  the  same  time  no  man  turned  out  more  animals  than  could  be 
supported  upon  his  own  land.  By  this  system  the  labor  and  ex- 
pense of  enclosures  were  avoided.     See  references  under  Note  25. 

Note  193.  — Page  86. 

See  Lex  Burg.  XXVIII.  1  :  Si  quis  Burgundio  aut  Romanus 
sylvam  non  habeat,  incidendi  ligna  ad  usus  suos  do  jacentivis  et 
sine  fructu  arboribus  in  cujuslibet  sylva  habeat  liberam  potestatem, 
neque  ab  illo  cujus  sylva  est  repellatur. 


23 G  EARLY  HISTORY  OF  LAND-HOLDING. 

Note  194.  — Page  86. 

Lex  SaL  XXVII.  18  :  Si  quis  ligna  aliena  in  silva  aliena  fura- 
veiit  solidos  iii  culpabilis  judicetur.  Capitularia  A.  D.  G15,  XXI: 
sylvas  Ecclesiarum  aut  privatorum.  See  also  Lex  Baiw.  XXI ; 
Lex  Burg.  XXVIII ;  Lex  AVisig.  Lib.  VIII.  Tit.  II.  2,  Tit.  III. 
8,  Tit.  IV.  27,  Tit.  V;  Rotliar  CCXLIV,  CCXLV,  CCCXXIV 
et  seq.  ;  Alfred  12  :  if  a  man  burn  or  hew  anotiier's  wood  ;  and  Ibid. 
13:  he  who  owns  the  wood.  Capitularia  A.  D.  813,  III.  40: 
hereditas  de  sylva.  Alsat.  Dipl.  XI :  possessio  in  silvis.  See  also 
Ibid.  XXXV,  LXVII,  LXXXVII :  de  silva  quasi  jugcra  septem 
.  .  .  holzraarcha.  Formulae  CCXXXIX,  CCLXXXII,  CCCXIV: 
unam  silvam  suae  singularis  ac  propriae  potestatis  ;  CCCLXV  :  de 
terra  vero  silvativa  duas  hobas  ;  CCCLXVII :  nemoribus  propriis  ; 
CCCXCVIII,  CCCCTI.  Kcmblc's  Codex  CCXIII  (cf.  CCLXV), 
CCXCVII.  Lacomblet  Urkb.  7  :  scara  in  silva  juxta  formam  houe 
plene  ;  Go  :  in  ilia  silva  searas  lx  ;  93  :  duos  speciales  forastas. 
Fulda  Trad.  Cap.  6.  67  :  Reginbraht  Trad,  unam  holzmarcham  ;  91  ; 
98  ;  101 :  ambitum  de  silva ;  130 :  unum  nemus.  See  also  Ibid. 
Cap.  5.  4,  and  Cap.  38.  201  :  trad,  holzmarcham  ad  x  hubas  ;  Cap. 
39.  77  :  tria  novalia  proprie  silve  ;  82  :  huba  in  silvis.  Fulda  Co- 
dex 298  :  X  jugera  sultus  ;  506,  where  property  in  woodland  is 
exchanged  for  arable  land,  in  the  same  villa. 

Lauresham  Cod.  XXXIII,  MMCCCXXI,  MMDCCCXCIII, 
MMMDLXXII,  MMMDCCCVIII :  silvam  in  qua  saginari  possunt 
C  porci.  Trad.  Wiz.  XXI,  LIll :  silva  quod  ego  mea  uxore  condo- 
navi.  Ibid.  CLXXVIII,  CCVI,  CCVIII :  in  marca  forastum  meum 
et  portione  de  ilia  harde.  Ibid.  CCIX,  CCXI,  CCXIX,  CCXXVII, 
CCXXXV,  CCXLIV :  de  ipsa  silva  sua  portione,  perticas  nona- 
ginta  et  una.  Then  Ibid.  CCLXIII.  Cod.  S.  GalU  85,  102,  110 : 
in  villa  silva  quod  pater  mens  reliquid  mihi ;  123,  331  :  tres  silvas 
conscrvatas  ;  373,  381  :  silvam  habentem  hobas  v  ;  410,  444,  586, 
619,  643:  silvulam  ab  aliorum  potestate  segregatam ;  701,  775: 
silvulam  unam  bonam.  Hist.  Frising.  I.  p.  199.  Then  Ibid.  XXX, 
XLIX,  CXCVIII,  CCIII :  partem  propriae  silvae  ;  CCCXXVII : 
suam  silvam  ;  CDXLII,  DIV,  DXXVIII :  partem  de  propria  silva  ; 
DXL,  DXLVI,  DLXXIV,  DCI,  DCVIII,  DCXVIII,  DCXXXVII, 
DCXCIII,  DCCIX  :  unum  lucum  :  DCCXXXVII,  DCCXXXIX, 
DCCXLVII,  DCCLXVII,  DCCLXXIV  :  de  silva  hobas  ii.     Ried 


NOTES  AND  REFEEENCES.  237 

Cod.  Dipl.  XXXin,  XL,  LXXXII,  LXXXIH,  XC :  communi 
utilitiite  silvae,  sivo  in  special!  comprcbensione  ;  XCVII :  forestum 
cum  forestario.  "Wirtemb.  Urkb.  XXVIII :  silvamea.  So  elsewhere, 
in  numberless  places.  The  references  to  undivided  and  common 
forests  are  comparativeh'  rare.  In  man}'  cases  the  silva  is  not  de- 
scribed either  as  undivided  or  as  divided  property- ;  as,  for  exam- 
ple, in  the  formula,  cian  campis,  pratis,  pascuis,  silvis,  etc.  In  such 
cases  the  question  whether  it  was  held  in  severalty  or  in  common 
remains  open. 

Note  195.  — Page  87. 

Given  the  formula,  cum  campis,  pratis,  pascia's,  silvis,  etc.,  it 
remains  an  open  question  whether  the  lands  referred  to  were  held 
in  common  or  in  severalty ;  because  we  find  lands  held  in  common, 
and  also  lands  held  in  severalt}*,  in  records  of  the  same  date.  In 
order  to  prove  that  the  silvis  of  the  formula  were  common  lands, 
it  would  be  necessary  to  show  that  private  forests  did  not  exist  at 
the  time.  This  cannot  be  done  in  any  case.  We  know  that  sev- 
eralties of  forest  land  existed  everywhere  from  the  time  of  Lex 
Salica  on.     See  Note  194. 

Note  196.  — Page  87. 
See  Notes  9G,  97,  98. 

Note  197.  — Page  88. 
See  Notes  101,  102. 

Note  198.  — Page  89. 

According  to  the  laws  of  inheritance.  Sec  pp.  29,  30,  and 
Notes  73-77. 

Note  199.  — Page  89. 

Although  in  some  cases  the  original  divisions  were  obliterated, 
they  usually  remained.  A  village  which  originally  consisted  often 
allotments,  mansi  or  Jmhae,  continued  to  consist  of  ten  allotments  ; 


238  EARLY  HISTORY  OF  LAND-HOLDINa. 

in  spite  of  tlie  fact  that  the  allotments  were  divided  and  distributed 
among  several  or  man}-  persons.  The  preservation  of  the  original 
allotments  facilitated  very  much  the  division  and  distribution  of 
undivided  lands.  The  owners  of  the  different  allotments  had  differ- 
ent marks,  which  were  used  in  easting  lots.  See  Notes  22,  185. 
The  holders  of  the  same  mark  received  their  lands  together,  and 
then  divided  them  among  themselves  according  to  individual  shares. 
The  villagers  as  a  body  took  no  i)art  in  the  subdivision  of  the 
allotments.  They  were  assigned  to  the  owners,  and  divided  by 
them,  among  themselves.     See  references  in  Note  200. 

Note  200.  —  Page  89. 

See  Prof.  Ilaussen's  essay  upon  the  "Gehoferschaften  in  Regi- 
erungsbezirk  Trier,"  in  the  Proceedings  of  the  Berlin  Academy  of 
Sciences,  1883.  The  essay  is  reprinted  in  his  "  Agrarhistorische 
Abhandlungen."  See  also  Dr.  Achenbaeh's  "  Ilaubcrgs-Genos- 
senschaften  des  Siegerlandes  "  (Bonn,  18G3). 

Note  201.  — Page  90. 
Dion3-sius  Ilalicarnassensis  IV.  14. 

Note  202.  — Page  91. 

This  was  the  condition  of  things  until  the  feudal  system  was  in- 
troduced. We  have  first  the  system  of  isolated  farms,  —  Einzel- 
hofe;  then  a  S3-stem  of  clan  villages  and  free  colonies, — a  system 
of  Gehoferschaften.  Then  the  property  in  the  GeJioferschaflen  came 
to  be  concentrated  in  a  few  hands.  At  the  same  time  the  mass  of 
the  people  became  dependants  under  over-lordship.  As  depend- 
ants they  were  distributed  in  tenant  colonies.  We  have  then  Geho- 
ferschaften of  tenants,  as  distinguished  from  Gehoferschaften  of  fi'ee 
proprietors.  These  later  Gehoferschaften  must  be  very  carefully 
distinguished  from  those  of  earl}'  times.  The}'  differ  from  them 
in  many  respects.  The  princii)lc  of  individual  property  is  less 
clearly  recognized,  less  rigidly  adhered  to.  Elements  of  democracy 
and  communism  appear  in  the  later  Gehoferschaften  for  the  first 
time.     The  undivided  land  was  often  the  property  of  the  lord,  and 


NOTES  AND  REFERENCES.  239 

the  members  of  the  Gchuferschafl  had  only  commoners'  rights  in  it. 
In  other  eases  the  land  was  given  bj'  the  lord  to  the  Gehliferschaft, 
rather  than  to  the  members  thereof.  The  GehlJferschaft  appears 
then  as  a  land-holding  corporation.  In  no  case,  so  far  as  we 
know,  did  the  curlier  Gehoferschaften  have  this  character. 

Note  203.  — Page  92. 

Mon.  Schlehdorf.  p.  13  :  mancipia  in  domo,  tam  in  villis  [vici 
locati  in  Tacitus  Germ.  IG?]  manentibus.  Cf.  Hist.  Frising.  I,  p. 
126  :  curtem  cum  domo  et  horrea  tria  ;  infra  domum  mancipia  vim 
.  .  .  et  ibidem  ad  ipsam  curtem  aspiciunt  mansos  duos  vestitos ; 
inter  illos  contincntur  mancipia  decem. 

Note  204.  — Page  93. 

Tacitus  saj^s  of  the  Germans,  that  thej'  settled  apart  from  one 
another  in  isolated  farmsteads.  Then  he  sa3'S  that  the}'  established 
villages,  —  vicos  locant.  It  is  evident  that  these  must  have  been 
villages  of  dependants  or  slaves.  "We  know,  from  Germ.  25,  that 
the  Germans  had  dependants  and  slaves,  and  that  they  were  set 
out  upon  the  land  like  Roman  coloni.  The}'  must  have  been  dis- 
tributed in  village  communities.  "We  have  seen  how  this  inference 
is  supported  by  the  testimony  of  the  later  records.  It  is  probable 
that  in  many  cases  several  free-lords  combined  in  founding  a  vil- 
lage, and  took  shares  in  it  according  to  the  number  of  dependants 
or  slaves  each  one  contributed,  as  described  in  the  text.  There 
is  nothing  in  the  statements  of  Tacitus,  nor  is  there  anything  in 
the  later  records,  inconsistent  with  this  supposition.  "We  may,  if 
we  please,  interpret  Germ.  26  in  accordance  with  it.  See  Note  9. 
The  freemen  occupied  as  a  body  as  many  arable  lots  as  they  liad 
cultivators,  and  then  divided  the  lots  secundum  dir/ nation  em ;  which 
would  be  according  to  the  number  of  cultivators  each  man  had  in 
his  following.  He  who  contributed  ten  cultivators  would  receive 
ten  lots  ;  he  who  contril)uted  five  cultivators  would  receive  five 
lots;  and  so  on.  Having  disposed  of  the  cultivators  in  this  way, 
the  free-lords  might  retire  to  their  isolated  farmsteads  and  their  life 
of  ease.  They  would  be  supported  by  the  produce  of  their  i-espect- 
ive  lots  and  the  labor  of  the  cultivators.  There  is  a  good  deal  to 
be  said  in  favor  of  this  view. 


240  EARLY  HISTORY  OF  LAND-HOLDINa. 

Note  205.  — Page  93. 

"^''c  have,  in  the  first  place,  certain  noble  or  patrician  families  as 
a  governing  body.  Then  we  have  a  class  of  artisans,  mechanics, 
and  tradespeople,  and  a  class  of  agricultural  laborers,  distributed 
in  houses  and  upon  lands  belonging  to  members  of  the  governing 
body.  The  historj-  of  the  group  thus  constituted  resembles  in  verj' 
many  points  the  history  of  a  Greek  or  Latin  town.  The  lower 
classes  increase  in  power  and  influence,  and  finally  obtain  a  share 
in  the  government  of  the  city  and  its  district,  in  very  much  the 
same  way  as  they  did  in  Greece  and  in  Italy. 

Note  20G.  —  Page  94. 

In  regard  to  the  Gehoferschaften  along  the  Saar  and  the  Mosel 
there  are  two  theories.  According  to  some  writers  these  Gehofer- 
schaften were  originally  communities  of  dependants  or  slaves,  that 
is  to  sa}'  communities  of  tenants  under  landlordship  :  while  accord- 
ing to  other  writers  they  were  originallj-  free  communities,  without 
an}-  over-lords.  For  our  own  part,  we  do  not  see  how  the  question 
can  be  decided  except  in  cases,  if  there  be  an}',  in  which  an  origin 
is  described  in  the  records.  We  are  inclined  to  think  that  these 
particular  Gehoferschaften  were  originall}'  communities  of  serfs. 
We  believe  that  in  most  cases  the}'  are  described  as  such  in  the 
earliest  records  ;  and  we  think  it  is  best  to  abide  by  the  testimony 
of  the  records.  At  the  same  time,  inasmuch  as  the  existence  of 
free  Gehoferschaften  in  early  times  is  a  pretty  well  established  fact, 
we  grant  that  it  is  possible,  if  not  probable,  that  the  aforesaid 
Gehoferschaften  were  originally  free.  If,  however,  we  assume  that 
they  were  originally  free,  we  must  not  assume  that  they  became  sub- 
ject to  over-lords  and  endured  over-lordship  without  being  changed 
in  many  respects  thereby.  We  may  be  sure  that  their  original 
constitution  was  changed,  though  we  may  not  know  in  what  partic- 
ular respects.  We  must  be  careful,  therefore,  how  we  use  them  to 
illustrate  a  primitive  condition  of  things.  It  is  often  said  that  we 
have  in  the  Gehoferschaften  of  the  Saar  and  Mosel  examples  of  a 
primitive  village  community.  This,  however,  is  an  assumption. 
We  do  not  know  whether  they  were  originally  free  communities,  or 
communities  of  serfs  ;  and  even  if  we  could  be  sure  that  they  were 


NOTES  AND  REFERENCES.  241 

originally  free  communities,  we  do  not  know  to  what  extent  their 
original  constitution  has  been  changed  under  the  regime  of  the 
over-lords  and  the  feudal  system. 

Note  207.  —  Page  94. 

Formula  CLXI :  Quia  si  aliquis  servo  suo  gasindo  suo,  aliquid 
concedere  voluerit.  lustissimus  nostris  sublevatur  muncribus  qui 
nobis  fideliter  et  instantia  famulantur  officio.  Ego,  in  Dei  nomen, 
ille,  fideli  nostro  illi.  Pro  respectu  fidei  inservitii  tui,  quia  circa 
nos  inpendere  non  desistis,  prumtissima  voluntate  cedimus  te  a  die 
praesente  locello  nuncupante  illo,  aut  manso  illo,  infra  tcrmino  villa 
nostra  ilia,  cum  omni  adiacentia  ad  ipso  locello  aut  mancello  aspi- 
cientera,  terris,  domibus,  raancipiis,  vineis,  pratella,  silvola,  vel 
reliquis  beneficiis  ibidem  aspicientibus  :  ita  ut  ab  hoc  die  ipso  iure 
proprietario,  si  ita  convenit,  aut  sub  reditus  terre,  in  tua  revoces 
potestate,  et  nulla  functione  aut  reditus  terrae  vel  pascuario  aut 
agrario  aut  quodcumque  dici  potest  exinde  solvere,  nee  tu,  nee 
tua  posteritas,  nobis  nee  heredibus  nostris,  nee  quicumque  potest 
nos  ipsa  villa  possidere,  non  dcbeatis,  nisi  tantum,  si  ita  vult,  riga, 
sed  ipsum  omnibus  diebus  vite  tuae  aut  haeredis  tui  emuniter 
debeatis  poscdere,  vel  quicquid  exinde  facere  volueritis  liberam  ha- 
beatis  potestatem.  Si  quis  vero,  quod  futurum  esse  non  crcdimus, 
aliquis  de  heredibus  nostris,  vel  quicumque,  contra  banc  cessionem 
nostram  agere  aut  ipsa  rem  tibi  auferre  conaverit,  inferat  tibi  cum 
cogente  fisco  auri  tantum,  et  banc  epistola  firma  permaneat  cum 
stipulatione  subnexa.  Cf.  Rothar  CCXXVIII :  si  aliquid  in  ga- 
sindio  Ducis,  aut  privatorum  hominum  obscquio  donum  vel  munus 
conquisierit. 

Note  208.  — Page  94. 

Wm.  Conq.  XXIX :  De  colonis  torrc.  Coloni  et  tcrrarum  cxcr- 
citores  non  vexentur  ultra  debitum  et  statutum :  nee  licet  dominis 
removere  colonos  a  terris,  dumraodo  debita  servicia  persolvant. 
Cf.  Ibid.  XXXI :  Do  terra  colenda.  Si  domini  terrartim  non  pro- 
curent  idoncos  cultores  ad  terras  suas  colendas,  justiciarii  hoc  faci- 
ant.     This  is  a  rather  interesting  bit  of  legislation. 

IG 


242  EARLY  HISTORY   OF  LAXD-HOLDING. 

Note  209.  — Page  95. 

The  nature  of  such  communities  may  be  gathered  from  the  Cou- 
tum.  de  Nivernais,  Chap.  XXII :  Des  communautez  et  associations. 
See  Coutum.  Gen.  Ill,  pp.  1145,  1146.  It  will  be  seen  how  the 
house  communities  arose  from  the  multiplication  of  heirs  upon 
undivided  inheritances. 

Note  210.  — Page  95. 

The  vavassoriae  were  estates  held  by  vassals  of  low  degree. 
They  must  be  distinguished  from  the  fiefs  of  the  great  nobles,  on 
the  one  hand,  and  from  the  allotments  assigned  to  serfs,  on  the 
other.  The}'  were  held  to  be  divisible  according  to  the  customary 
law  of  inheritance,  and  were  as  a  rule  ver}'  much  subdivided.  A 
vavassorin,  belonging  to  the  abbey  at  Caen  in  the  year  1430,  con- 
sisted of  sixt3'-six  acres  of  land.  It  was  divided  into  no  less  than 
a  hundred  and  ten  parcels,  which  were  owned  by  thirtj'-nine  differ- 
ent persons. 

Although  the  vavaasoria  was  thus  divisible  among  the  vavassores, 
the  lord  had  no  dealings  except  with  one  person,  usuallj'  the  eldest 
male  of  the  oldest  family  in  the  community.  This  person  repre- 
sented the  vavassores  in  all  relations  with  the  lord.  He  paid  the 
(lues  and  services,  and  then  distributed  the  burden  thereof  between 
himself  and  his  associates.  He  was  the  head  man  of  the  commu- 
nity, and  the  only  member  thereof  who  came,  necessaril}',  into  con- 
nection with  the  outside  world.  See  Le  Grand  Coustumier  de 
Normendie,  Chap.  XXVI,  in  Coutum.  Gen.  IV,  p.  13.  See  also 
Leopold  Delisle's  Etudes  sur  la  Condition  de  la  Classe  Agrieole  en 
Normandie  (Evreux,  1851,  8°),  pp.  32-34.  This  work  is  of  great 
value,  especialh'  as  it  contains  many  extracts  from  unpublished  rec- 
ords ;  but,  unfortunately,  it  has  become  excessively  rare,  and  is 
verj^  costly. 

It  is  interesting  to  observe  that  the  lands  held  according  to  the 
custom  of  Gavelkind  in  Kent,  England,  correspond  ver\'  closely 
with  the  vavassoriae  of  Normand3\  As  in  the  case  of  the  vavassoriae, 
so  in  the  case  of  Gavelkind  lands,  we  have  partition  among  the 
heirs  and  "  one  suite  for  all  the  parceners."  See  Kent  Custum  X 
and  XI  (p.  7). 


NOTES  AXD  REFERENCES.  243 

Note  211.  — Page  96. 

It  is  maintained,  for  example,  that  the  Russian  mir  is  an  ancient 
form  of  proprietorship  antedating  all  forms  of  private  i)roperty  and 
landlordship  ;  and  tliis  view  is  maintained  in  spite  of  the  faet  that 
the  mir  has  been  an  association  of  tenants,  under  over-lordship, 
from  the  earliest  period  of  its  recorded  historj'.  What  right  have 
we  to  assume  that  the  mir  is  more  ancient  than  the  over-lordship 
under  which  it  has  alwaj's,  so  far  as  we  know,  existed? 

The  communistic  mir  is  constantly  cited  as  an  example  of 
"primitive  property";  when  the  fact  is,  that  it  cannot  be  cited 
even  as  a  case  of  primitive  tenanc3\  The  communism  of  the  Rus- 
sian m^V,  its  peculiar  characteristic,  appears  to  be  an  innovation 
of  comparatively  recent  times.  The  testimony  of  the  records  goes 
to  show,  we  are  told  b^'  good  authority,  that  the  custom  of  making 
redistributions  of  the  land  is  relatively  modern,  having  been  intro- 
duced some  time  during  the  seventeenth  centurj'.  The  custom 
appears  to  be  a  result  of  the  heavy  poll-taxes  which  the  people 
were  obliged  to  pay.  The  village  was  charged  with  a  certain  rent, 
which  was  distributed  among  the  villagers  in  equal  shares.  A  nat- 
ural result  of  this  was  an  equalization  of  holdings.  The  result  of 
equal  taxation  was  an  equalization  of  property  taxed. 

In  regard  to  the  custom  of  redistributing  the  land  in  the  Russian 
village  communities,  see  the  very  interesting  article  by  Mr.  D.  Ma- 
kenzie  Wallace,  in  Macmillan's  Magazine  for  June,  1876.  See  also 
the  article,  hy  M.  Tchitcherine,  upon  serfdom  in  Russia  (^Leibeigen- 
schajt  in  liusdand),  in  Bluntsehli's  Staatsworterbuch. 

Note  212.  —  Page  96. 

The  distinction  which  we  should  draw  between  tribute  and  rent 
was  seldom  if  ever  marked  in  early  times.  The  receiver  of  tribute 
was  regarded  as  the  landlord,  and  he  who  paid  tril)ute  was  regarded 
as  a  tenant,  paying  rent.  So  when  a  countiy  was  conquered  and 
made  tributary,  the  iniiabitants  were  regarded  as  tenants  paying 
rent.  The  proprietorship  of  the  land,  the  landlordship,  passed  into 
the  hands  of  the  conqueror  or  conquerors.  The  inhabitants  of  the 
laud,  the  former  proprietors,  became  tenants. 


244  EARLY   HISTORY   OF  LAND-HOLDING. 

Note  213.— Page  96. 

Grants  of  land  were  constantly  made  upon  the  following  condi- 
tion, —  in  ea  ratione  ut,  qiuundiu  mihi  vita  comis  fuerit  superius 
denominatas  res  habere  mihi  liceat  et  cum  censu  singulis  annis 
prosolvere,  infantesque  mei  post  obitum  meum  similiter  faciant, 
omnisque  posteritas,  quae  de  ipsis  fuerit  procreata,  usque  in  sem- 
piternum.  (Juod  si  evenerit  ut  ipse  res  sine  herede  remaneant,  sine 
meae  posteritatis  legitima  procreatione,  quod  plerumque  contingit, 
nullus  de  heredibus  vel  proheredibus  ceteris  se  ibidem  possit  ad- 
jungcre,  sed  ubi  cum  censu  prosolvebatur,  illuc  jam  redcat  in  per- 
petuum.  See  Formula  CCCLIV :  Quod  omnis  posteritas  habere 
debet.  Examples  abound.  Cod.  S.  Galli  94 :  ut  annis  singulis 
censum  solvani  ego  et  agnatio  mea  post  me.  Ibid.  113  :  post  obi- 
tum nostrum  lieres  noster  ipsum  censum  et  opus  reddat ;  similiter 
et  tota  eorum  procreatio  faciat  legitime  genita.  Ibid.  193  :  ipsam 
rem  liceat  mihi  et  filiis  meis  post  me  et  filii  filiorum  meorum  et 
generaeionibus  meis  ad  usum  fruetuario  habere,  et  exinde  censum 
dare  debeamus  solidum  unum  in  quicquid  potuerimus  ad  festivitate 
sancti  Gallonis  aut  sancti  Martini.  Ibid.  211  :  post  obitum  meum 
filii  mei  et  tota  agnitio  eorum.  Ibid.  232  :  filii  mei  similiter  faciant 
et  illorum  tota  deinceps  cognatio.  Ibid.  279  :  similiter  et  tota  pos- 
teritas mea  in  eundem  percipiat  censum.  Ibid.  318 :  similiter  et 
legitima  procreatio  faciat.  So  also  in  Nos.  346,  469,  742,  766,  and 
in  others  besides.  Cf.  Alsat.  Dipl.  LXXVI :  ut  quamdiu  vixero, 
easdem  res  habeam,  similiter  infantes  et  eorum  posteritas,  quamdiu 
legittima  fuerit  et  eundem  censum  persolvant.  Cf.  also  Ritz  Urk. 
40 :  ut  singulis  annis  ipse  vel  omnes  postcri  ejus  xii  ibidem  persol- 
vant denarios  ;  and  Ibid.  III.  7  :  eadem  bona  jure  hercditario  recepi, 
pro  annua  pensione  so.  octo  maldris  siliginis  et  quatuor  titrici :  que 
pensio  tam  a  me  quam  ab  omnibus  dictorum  bonorum  successoribus 
in  festo  S.  Rcmigii  vel  ante  in  porpctuum  persolvetur. 

These  examples  could  be  multiplied  indefinitely. 

Note  214.  —  Page  97. 
See  Du  Cange,  sub  voc.  alodialiter. 


NOTES  AND  REFERENCES.  245 

Note  215.  — Page  97. 

See  the  address  of  the  Synod  of  Clermont  to  Theodebert  I.,  in 
Ruinart's  edition  of  Greg.  Turon.  pp.  1334:-133o. 

Note  216.  — Page  97. 
Tacitus  Germ.  15. 

Note  217.  — Page  98. 

Chlotarii  Constitutio  Generalis  A.  D.  560,  Cap,  XI :  Agraria, 
pascuaria,  vcl  decimas  poreorum,  Ecclesiae  pro  fidei  nostrae  devo- 
tione  coneedimus,  ita  ut  actor  aut  decimator  in  rebus  Ecclesiae 
nullus  aceedat :  Ecclesiae  vel  clericis  nuUam  requirant  agentes  pub- 
lici  functionem,  qui  avi  vel  genitoris  aut  germani  nostri  immunita- 
tem  meruerunt.    Then  Read  Greg.  Turon.  IX.  30,  and  Ibid.  V.  29. 

Note  218.  — Page  99. 

Chlotarii  Constitutio  Generalis,  Cap.  XI.  The  passage  is  given 
in  Note  217.  Then  read  Formula  CXLVII :  Ergo  cognuscat 
magnitudo  seu  strenuetas  vestra  uos  inlustre  viro  illi  prumptissima 
voluntate  villa  nuncupante  ilia,  sita  in  pago  illo,  cum  omni  merito 
ex  termine  suo,  in  integritate,  sicut  ab  illo  aut  a  fisco  nostro  fuit 
possessa  vel  moderno  tempore  possidetur,  visi  fuimus  concessisse. 
Quapropter  per  praesentem  auctoritatem  nostram  decernimus,  quod 
perpetualiter  mansuram  esse  iubemus,  ut  ipsa  villa  ilia  antedictus 
vir  ille,  ut  diximus,  in  orani  integritate,  cum  terris,  domibus,  aedi- 
ficiis,  acolabus,  mancipiis,  vineis,  silvis,  campis,  pratis,  pascuis, 
aquis  aquarumve  decursibus,  farinariis,  adiacentiis,  appendiciis,  vel 
qualibet  genus  hominum  ditioni  fisci  nostri  subditum,  qui  hibidem 
commaneut,  in  Integra  emunitate,  absque  ullius  introitus  indicum 
de  quaslibet  causas  freda  exigendum,  perpetualiter  habeat  concessa : 
ita  ut  earn  iure  proprietario  absque  ullius  expectata  indicum  tradi- 
tione  habeat,  teneat  atquc  possideat,  et  suis  posteris,  Domino 
adiuvante,  ex  nostra  largitate,  aut  cui  voluerit,  ad  possedendum 
relinquat,  vel  quicquid  exinde  facere  voluerit  ex  nostro  permisso 
liberam  in  omnibus  liabeat  potestatem.     Et  ut  haec  auctoritas  fir- 


246  EARLY  HISTORY  OF  LAXD-HOLDING. 

luior  habcatur,  manu  nostra  subter  earn  decrevimus  roborare.    This 
is  a  good  example  of  the  immunity  grant. 

See  also  Formulae  CXLVIII,  CXLIX,  CL ;  and  Diplomata 
Merowing.  2,  4,  9,  15,  28,  31,  38,  54,  55,  63,  G9,  etc.  Kemble's 
Codex  LXXXVII :  sit  libera  ab  omnibus  saecularibus  servitiis,  et 
omnes  terrae  ad  ilium  pertinentes,  exceptis  expeditione,  pontis  et 
areis  constructioue.  This  is  the  regular  form  of  immunity  in  early 
English  records.  The  landholder  was  freed  from  all  dues  and  ser- 
vices, except  military  service  and  the  duty  of  repairing  bridges  and 
fortifications,  — the  trinoda  necessitas  as  the  phrase  was.  See  also 
Kemble's  Codex  LVIII,  CLXVII,  CXCVI,  CCVI,  CCXIV, 
CCLXXXVII,  and  man}-  more.  It  is  useless  to  multiply  these 
examples. 

Note  219. —  Page  99. 
Wirtemb.  Urkb.  CXLV  and  CXLII  (No.  527  of  Cod.  S.  Galli). 

Note  220. —Page  100. 

There  was  an  enormous  concentration  of  allodial  property  during 
the  Carolingian  period.  It  is  merely  necessary  to  turn  over  the 
documents  of  the  period,  to  be  convinced  of  this. 

An  admirable  account  of  the  growth  of  great  estates  is  given  by 
Dr.  K.  T.  von  Inama-Sternegg  in  his  work  entitled,  Die  Ausbildung 
der  grossen  Grundherrschaften  in  Deutschland  wiihrend  der  Karo- 
lingerzeit  (Leipzig,  1878,  8°)  ;  and  in  his  Wirthschaftsgeschichte 
(Leipzig,  1879,  8°).  We  must  take  the  opportunity  here  to  recom- 
mend these  writings  to  the  student,  for  his  especial  consideration. 

Dr.  von  Inama-Sternegg  has  reasoned  conclusivelj-  to  prove  the 
great  antiquity'  of  the  system  of  isolated  farms,  the  Einzelhofsystem^ 
and  private  property  in  land,  Sondereigenthum.  He  has  questioned 
the  existence  of  any  community  of  land,  Feldgemeinschaft^  in  the 
ancient  marks,  Markgenossenschaflen.  He  calls  them  Markgcnossen- 
schaften  ohne  Feldgemclnschaft.  He  holds  that  the  agricultural  com- 
munit}'  of  the  Middle  Ages  is,  as  a  rule,  a  community  of  tenants 
and  serfs  ;  that  it  has  been  a  community  of  tenants  and  serfs  from 
the  earliest  period  of  its  history.  These  conclusions  seem  to  us  to 
be  sound  and  true.      "We  recommend   them,  accordingly,  to  cur 


NOTES  AND  REFERENCES.  247 

readers  ;  and  take  the  opportunit}-,  at  the  same  time,  to  express 
our  respect  for  their  advocate,  and  also  our  gratitude  for  the  kind 
encouragement  he  has  extended  to  an  unknown  writer  in  a  dis- 
tant land. 

Note  221.  — Page  101. 
Cod.  S.  Gain  491.     Cf.  references  in  Note  213. 

Note  222.  — Page  101. 

The  distinction  between  socage  tenures  and  tenures  in  villenage, 
what  are  now  known  as  copyhold  tenures,  is  clearl}'  drawn  in  our 
English  law  books.  It  is  a  distinction  based  upon  essential  differ- 
ences, —  differences  which  have  existed  from  the  earliest  period 
of  recorded  histor}-.  So  in  France  and  Germany,  the  distinction 
between  free  tenures  and  tenures  in  villenage  is  everywhere  clearly 
drawn.  It  is  everywhere  based  upon  real  differences.  Without 
doubt,  tenures  in  villenage  were  sometimes  converted  into  free  ten- 
ures, and  free  tenures  were  converted  into  tenures  in  villenage  ; 
but  that  is  no  reason  why  the}'  should  not  be  distinguished  one  from 
another.  B}'  such  conversions  one  form  of  tenure  was  substituted 
for  the  other. 

It  is  sometimes  argued  that  we  have  in  the  free  tenant  the  ancient 
allodial  proprietor.  I>y  others  it  is  argued  that  the  villein  tenant 
was  the  ancient  allodial  proprietor.  There  is  quite  a  controversy, 
whether  ancient  allodial  property  has  survived  to  modern  times  in 
the  free  tenures  or  in  the  tenures  in  villenage.  The  controversy 
seems  to  us  a  very  idle  one.  When  allodial  property  was  con- 
verted into  a  free  tenure  or  a  tenure  in  villenage,  it  ceased  to  be 
allodial  property.  It  no  longer  comes  under  the  definition  given 
to  allodial  property.  When  we  have  once  defined  an  institution 
correctly,  it  survives  only  so  long  as  it  answers  to  the  defini- 
tion. Neither  free  tenures  nor  tenures  in  villenage  answer  at 
all  to  a  definition  of  allodial  property ;  so  it  cannot  be  said  that 
allodial  property  survives  either  in  the  one  or  the  other.  The 
question  may  be  raised  whether  the  mass  of  allodial  proprietors 
became  free  tenants  or  serfs ;  but  the  question  should  be  at  once 
laid  on  the  shelf,  because  we  have  no  statistics  in  the  records  to 


248  EARLY  HISTORY   OF  LAXD-HOLDING. 

enable  us  to  answer  it.  Besides,  it  must  not  be  forgotten  that  both 
the  free  tenants  and  the  serfs  must  have  descended,  more  or  less 
immediateh-,  from  allodial  proprietors,  inasmuch  as  allodial  pro- 
prietorship antedates  both  free  tenancy  and  serfdom  ;  free  tenancy 
being  defined  as  free  holding  under  proprietorship  ;  serfdom  being 
defined  as  servile  holding  under  proprietorship  ;  there  being  no 
other  proprietorship  among  the  earl}'  Germans,  except  that  which 
comes  under  the  definition  of  allodial  proprietorship.  Of  course 
we  have  a  feudal  proprietorship,  but  that  is  not  properly-  speaking 
proprietorship.  It  is  another  form  of  tenancy  under  proprietorship. 
We  cannot  say  that  allodial  proprietorship  survived  even  in  feudal 
lordships.  Properly-  speaking  it  survived  only  in  the  sovereign 
over-lordship  of  the  kings  and  emperors,  and,  here  and  there,  where 
there  were  independent  lordships  among  the  people.  Allodial  pro- 
prietorship was  a  sovereign  and  independent  proprietorship.  The 
allodial  proprietor  ma}'  be  ver}-  correctly  described  as  a  king, 
within  the  limits  of  his  estate.  He  was  a  judge  in  disputes  arising 
among  his  tenants.  lie  was  their  advocate  in  causes  of  dispute 
with  persons  outside  the  estate  ;  and  he  made  war  upon  his  neigh- 
bors, if  he  dared  to  take  the  consequences  of  so  doing.  His 
neighbors,  however,  were  his  kinsmen,  and  he  was  usually  on  good 
terms  with  them.  In  company  with  his  kinsmen,  he  with  his  ten- 
ants and  they  with  theirs,  he  waged  war  on  alien  families  and 
elans,  with  more  or  less  success.  The  state  of  the  earh'  Germans 
is  best  described  as  a  confederation  of  sovereign  proprietors,  —  reges 
vicini.  The  territor}-  of  the  state  consisted  of  the  estates  of  these 
proprietors.  The  assemblj^  was  an  inter-estate  convention  so  to 
speak,  in  which  the  opinion  of  the  best  men,  or  a  majorit}',  was 
law. 

All  this,  however,  is  very  much  of  a  digression.  We  do  not 
propose  to  examine  here  the  political  constitution  of  the  early  state. 
It  is  with  the  land  system  onl}'  that  we  are  concerned. 

Note  223.  — Page  103. 

Tacitus  Germ.  32  :  inter  familiam  et  penates  et  jura  successio- 
num  equi  traduntur :  excipit  filius,  non  ut  cetera,  maximus  natu, 
sed  prout  ferox  bello  et  melior.  Cf.  Germ.  20:  heredes  tamen 
successoresque  sui  cuique  liberi,  et  nullum  testamentum.     In  the 


NOTES  AND  EEFERENCES.  249 

first  passage  the  Tencteri  are  referred  to ;  in  the  second,  the  Ger- 
mans in  general. 

Note  224.  — Page  103. 

See  Mr.  T.  E.  Cliffe  Leslie's  ver^'  interesting  article  on  Auvergne 
in  the  Fortnightly  Review,  December,  1874,  p.  745. 

Note  225.  — Page  104. 

See  Note  223.  See  also  the  Vita  S.  Benedicti  of  Baed,  §  11 : 
quomodo  terrcni  parentes  quem  primum  partu  fudcriiit,  eum  princi- 
pium  liberorum  suorum  cognoscere  et  ceteris  in  partienda  sua  here- 
ditate  praeferendura  ducere  solent. 

With  the  exception  of  the  passage  in  Tacitus,  this  is  the  earliest 
reference  to  the  custom  of  primogeniture  which  we  have  found. 
The  passage  may,  however,  refer  simply  to  a  preference  given  to 
the  eldest  son  in  respect  to  certain  items  of  the  inheritance  inca- 
pable of  division,  heirlooms  for  example.  So  in  the  Customs  of 
Stretford  in  Oxfordshire.     See  Coke  upon  Littleton,  18.  b. 

Note  226.  — Page  104. 

For  the  Haiisgesetze,  see  J.  J.  Moser's  FamiUen-Staatsrecht 
der  dcntschen  Rcichstiinde  ;  also  his  Personliehes  Staatsrecht,  and 
Deutsches  Staatsrecht.  These  works  were  published  towards  the 
end  of  the  last  century.  The  Hausgesetze  of  reigning  families  in 
German3'  were  published  at  Jena,  in  18G2,  by  Hermann  Schulze, 
under  the  title,  Die  Hausgesetze  der  rcgierendendeutschen  FUrsten- 
hauser. 

We  have  not  ourselves  had  access  to  these  works.  We  have 
had  to  depend  ui)on  the  account  of  their  contents  given  l)y  Hermann 
Schulze  in  the  Appendix  to  Stobbe's  Geschichte  dor  deutschen 
Rechtsquollen  (2  vols.,  Braunschweig,  18G0-G4,  8°). 

By  means  of  the  Hausgesetze  inheritances  were  given  to  males 
rather  than  to  females ;  the}^  were  made  inalienable  and  indivisi- 
ble ;  and  the  right  of  succession  was  conferred  upon  the  eldest  son, 
or  the  eldest  male  of  the  eldest  line. 


250  EARLY  HISTORY  OF  LAND-HOLDINa. 

Note  227.  —  Page  106. 
Sec  Note  222. 

Note  228.  —Page  106. 

This  may  be  inferred  from  the  existence  of  the  rules  prescribing 
divisions  among  heirs,  and  the  absence  of  exceptions  to  tliese  rules. 
Among  the  Bavarians,  for  example,  we  have  the  rule :  ut  fratres 
hereditatem  patris  aequaliter  dividant.  See  Lex  Baiw.  XIV.  Cap. 
VIII.  1.  No  exception  being  made  to  the  application  of  this  rule, 
we  may  assume  that  the  rule  had  a  universal  application,  —  that  it 
governed  the  distribution  of  all  inheritances,  whether  they  were 
held  as  independent  property  or  as  benefices.  The  existence  at 
this  time  of  beneficiary  holdings  is  proved  bv  the  words  nisi  defensor 
Ecclesiae  ipsiiis  inr  henejicmm  praestare  voluerit  ei,  in  Lex  Baiw.  I. 
Cap.  I. 

The  vavassoriae  of  Normandy  partook  of  the  nature  of  benefices. 
Tliey  were  caWqA  feuda  minora.  At  the  same  time  they  were  divis- 
ible among  the  heirs  from  generation  to  generation.  See  Note 
210.  We  ma}'  suppose  that  this  was  the  case  with  almost  all  bene- 
fices in  the  early  time,  in  so  far  as  the}'  were  held  with  a  right  of 
inheritance.  We  may  regard  the  Norman  vavassoriae  as  tyi)ical 
examples  of  ancient  beneficiary  holdings.  The  rule  of  indivisibility 
of  fiefs  was  introduced  afterwards. 

Note  229.  —  Page  106. 

The  principle  of  indivisibility  of  fiefs  being  recognized,  the  ques- 
tion arose  which  of  the  heirs  shall  have  the  inheritance.  The  first 
answer  to  this  question  would  be,  that  he  who  was  best  qualified  to 
hold  and  administer  it  ought  to  have  it.  Then  the  question  would 
arise  which  of  the  heirs  is  Ix'st  qualified.  In  order  to  settle  this  fre- 
quently very  diflicult  question,  and  the  disputes  arising  in  regard  to 
it,  it  would  be  necessary  to  adopt  a  rule  of  succession.  The  rule 
which,  in  the  long  run,  would  be  most  satisfactory,  would  be  the  rule 
of  primogeniture  ;  and  that  was  the  rule  generally  adopted.  We 
are  told  that  the  earliest  Ihinscieselze  now  extant  belong  to  the 
fourteenth  century,  and  are  simply  rules  against  divisions  of  family 
property,  —  Untheilbarkeitsverordnungen.     See  Stobbe's  Geschichte 


NOTES  AND   REFERENCES.  251 

der  Deutschen  Rechtsquellen,  II.  pp.  501-502.  The  rule  of  indi- 
\'isibility  being  recognized  and  adopted,  the  rule  of  primogeniture 
follows  as  a  natural  result,  almost  inevitabl}',  as  the  means  of  pre- 
venting disputes  among  heirs  upon  the  question  of  succession. 

Note  230.  — Page  lOG. 

Take,  for  exami)le,  the  vavassoi-ia  called  le  fief  au  Rosel  at  Quette- 
hou,  of  which  we  have  a  detailed  account  dating  from  the  beginning 
of  the  fifteenth  century.  It  consisted  of  sixty-six  acres  of  land,  and 
it  was  divided  among  more  than  thirty-nine  persons.  That  would 
give  a  little  more  than  an  acre  and  a  half  to  the  individual,  on  an 
average.  With  such  limited  inheritances  it  is  not  likel}'  that  the 
vavassores  were  persons  of  any  distinction  or  influence. 

See  Delisle's  Etudes  sur  la  Classe  Agricole  en  Normandie,  pp. 
33-34. 

Note  231.— Page  108. 

Already  in  the  time  of  Tacitus  the  people  were  beginning  to 
group  themselves  in  foUowings,  —  Gefulgschaften.  They  gave  up 
their  estates  and  became  companions  of  a  chief  or  king.  They  re- 
ceived from  him  arms  and  horses,  and  they  lived  with  him  as  mem- 
bers of  his  household.  Then  there  arose  a  competition  between 
the  chiefs  and  kings,  to  obtain  the  greatest  number  of  personal 
adherents,  and  various  and  great  were  the  inducements  offered  to 
the  people  at  large,  to  lead  them  to  give  up  their  independence 
See  Germ.  13,  14.  The  result  was,  that  all  but  the  wealthiest  and 
most  powerful  of  the  allodial  proprietors  became  dependants.  Then 
the  number  of  dependants  became,  in  many  cases,  so  great  that  it 
was  impossible  to  maintain  all  of  them  as  retainers  in  the  house- 
hold. They  were,  consequently,  distributed  into  two  classes, — a 
class  of  retainers  in  the  household,  and  a  class  of  beneficiaries. 
Then  a  struggle  for  wealth  and  power  began  between  the  lords  and 
the  beneficiaries. 

The  lords  discovered  that  their  estates  must  either  be  increased 
or  remain  undivided,  and  the  beneficiaries  came  to  the  same  conclu- 
sion. As  long  as  there  was  plent}'  of  land,  estates  were  increased 
and  divided ;  but  as  soon  as  land  became  scarce,  and  further  con- 
quests were  impossiI)lc',  the  lords  began  to  ailopt  the  princii)le  tliat 


252  EARLY  PIISTORY  OF  LAXD-HOLDINQ. 

inheritances  must  not  be  divided.  The  beneficiaries  followed  their 
example.  The  feudal  system  was  the  result.  It  was  only  among 
the  lower  orders  of  tenants  that  divisions  among  heirs  continued 
to  be  made.  It  was  among  the  lower  orders  of  tenants  onh'  that 
the  clan  system  continued  its  existence.  While  the  lords  and  the 
higher  class  of  tenants  became  rich  and  powerful,  pauperism  and 
servitude  increased  beneath  them.  The  number  of  discontents 
grew  constautl}-  larger  and  larger,  and  the  number  was  increased 
b\'  the  accession  of  the  disinherited  members  of  the  upper  classes. 
The  feudal  S3-stem  became  more  and  more  intolerable,  until  the 
lower  classes  were  stirred  to  revolt,  and  it  was  overthrown  more  or 
less  completely  everywhere.  It  is  in  England  only  that  the  practice 
of  disinheriting  all  but  one  heir  is  still  tolerated  by  an  indulgent 
populace.  The  lower  classes  are  gathered  into  the  manufacturing 
centres.  The  disinherited  members  of  the  upper  classes  take  refuge 
in  the  professions.  The  land  remains  still  in  the  hands  of  compara- 
tively few  persons,  as  in  the  Middle  Ages.  How  long  this  condition 
of  things  may  last  remains  to  be  seen.  It  can  hardl}^  last  very 
long.  The  number  of  people  who  consider  it  intolerable  seems  to 
be  increasing  day  b}'  day.  With  the  abolition  of  indivisible  estates 
a  fundamental  cause  of  feudalism  will  be  removed.  Given  indi- 
visible estates  and  an  increasing  population,  the  result  will  be  de- 
pendence upon  landlords  and  personal  adherence  to  them.  The 
ultimate  result  will  be  a  form  of  feudalism. 


The  student  who  desires  to  review  the  literature  of  our 
subject  will  find  the  following  list  of  authors  and  titles  ser- 
viceable. 

AcHENBACH,  IT.  —  Die  Ilaubergsgenossenschaften  des  Siegerlandes. 

Ein  Beitrag  zur  Darstellung  der  deutschen  Flur-  und  Agrar- 

Verfassung.     Bonn,  1863.     8°. 
Adams,  H.  B. — The  Germanic  Origin  of  New  England  Towns. 

Johns  Hopkins  University  Studies  in  Historical  and  Political 

Science.     II.     Baltimore,  1882.     8°. 
Allen,  W.  F. —  Community  of  Land  in  New  England.     In  the 

Nation,  Vol.  2G,  p.  22,  No.  654,  Jan.  10,  1878. 


NOTES  AND   REFERENCES.  253 

Allen,  W.  F.  —  Rural  Classes  of  England  in  the  Thirteenth  Cen- 
tiir3\     Madison,  Wisconsin,  1874. 

Peasant  Communities  in  France,  and  Origin  of  the  Free- 
holders [in  England].     A  pamphlet  without  imprint. 

English  Cottagers  of  the  Middle  Ages.     Pamphlet  without 


imprint. 

Amiha,  Karl  v.  —  Erbfolge  und  Verwandschafts-Gliederung  nach 
den  alt-niederdeutschen  Rechteu.     Miinchen,  1874.     8°. 

Anderson,  Joseph.  —  The  Orkne3-inga  Saga,  with  Notes  and  an 
Introduction.     Edinburgh,  1873.     8°. 

Anton,  K.  G.  —  Geschichte  der  teutschen  Landwirthschaft.  3  vols. 
Gorliz,  1799-1802.     8°. 

Arnold,  Wiluelm.  —  Ansiedelungen  und  Wanderungen  deutscher 
Stiimme.     Marburg,  1875.     8°. 

Deutsche  Urzeit.     3d  edition.     Gotha,  1881.     8°. 

Beaune,  Henri.  —  Introduction  a  I'Etnde  Ilistorique  du  Droit 
Coutumier  Fran(;ais  jusqu'ii  la  Redaction  officielle  des  Cou- 
tumes.     Lyon,  1880.     8°. 

Beck.  —  Beschreibung  des  Regierungsbezirkes  Trier.  Bd.  I.  con- 
tains an  account  of  the  Geltoferschaften.     Trier,  18G8. 

Bethmann-HollweOx,  M.  A.  v.  —  Der  germanisch-romanisch  Civil- 
prozess  im  Mittelalter.     3  vols.     Bonn,  18G8-74.     8°. 

Blackstone,  Sir  AVilliam.  —  Commentaries  on  the  Laws  of  Eng- 
land. We  have  used  the  IGth  edition,  with  Notes  by  John 
Taylor  Coleridge.     4  vols.     London,  1825.     8°. 

Bluntsciili,  J.  C.  —  Ueberdie  Landgemeinden.  Kritische  Ucber- 
schau  der  deutscheu  Gesetzgebung  und  Rechtswissenschaft. 
Bd.  L     1853. 

Die  Wirthschaftliche  Rechtsordnung  der  deutschen  Dorfer. 

Kritische  Ueberschau  der  deutschen  Gesetzgebung  und  Rechts- 
wissenschaft.    Bd.  II.     1855. 

Staats-  und  Rechtsgeschichte   der   Stadt  und  Landschaft 


Zurich.     2d  edition.     2  vols.     Ziu'ich,  1856.     8°. 

Binding,  Carl.  —  Das  Burgundisch-Romanische  Konigreich  (von 
443  bis  532  N.  Chr.).     Leipzig,  1868.     8°. 

BoDMANX,  F.  J.  — Rheinijauischer  Altortluhner.    Mainz.  1819.    4*. 


254  EARLY   HISTORY   OF   LAND-HOLDING. 

BoRCHGRAVE,  Emil  de.  —  Histoirc  dcs  Colonies  Bolges  qui  s'ota- 
blirent  en  Alieniagne  pendunt  la  Doazieme  et  le  Treizieme 
Siecle.     Bruxelles,  I8G0. 

Essai  Ilistorique  sur  les  Colonies  Beiges  qui  s'etablirent  en 

Ilongrie  et  en  Transsylvanie.     Bruxelles,  1871. 

BuANTs,  Victor.  —  Essai  Ilistorique  sur  la  Condition  dcs  Classes 
Rurales  en  Belgique.     Louvain,  Paris,  1880.     8^. 

Briesen,  Constantin  v.  —  Urkundliche  Geschichte  des  Kreises 
Merzig.  With  an  account  of  the  GehUferschaften.  Saarlouis, 
18G3.     8°. 

Brodrick,  G.  C.  —  The  Law  and  Custom  of  Primogeniture.  S3's- 
tems  of  Land  Tenure  in  various  Countries.  IX.  Published  by 
the  Cobden  Club.     Loudon,  1876.     8°. 

Brunner,  Heinrich.  —  Das  Anglonormannische  Erbfolgsjstem. 
Zur  Geschichte  der  Parenteleu  Ordnung.     Leipzig,  18G9.     8°. 

Zur  Reehtsgeschichte   der  Romischen  und  Germanischen 

Urkunde.     Berlin,  1880.     8". 

BuciiKU,  Karl.  —  Das  Ureigenthum,  von  Emilc  de  Laveleye.  Au- 
thorized translation,  with  amplihcations.     Leipzig,  1879.     8°. 

Coke,  Sir  Edward.  —  Upon  Littleton.  We  have  used  the  editioa 
with  Ilardgrave's  and  Butler's  Notes.     2  vols.     Philadelpliia, 

1853.  8°. 

CouLANGES,  FusTEL  DE. — Tlistoirc  dcs  Institutions  Politiques  de 
I'Ancienne  France.     I.     Paris,  1875.     8°. 

Etude  sur  la  Proprietc  a  Sparte.     Memoire  lu  a  I'Academie 

des  Sciences  Morales  et  Politiques.  Nov.-Dec.  1879.  In  the 
Seances  ;  in  the  Journal  des  Savants,  1880  ;  and  separately, 
Paris,  1880.     8°. 

Dahn,  Felix.  —  Die  Konige  der  Germanen.  G  vols.  Miinchen, 
Wiirzburg,  1861-71.     8°. 

Dareste  de  la  Chavanne,  C.  —  Ilistoire  des  Classes  Agricolcs 
en  France  depuis  Saint  Louis  jusqu'a  Louis  XVI.      Paris, 

1854.  8°. 

Dareste,  R.  —  Les  Ancicnncs  Lois  Suedoises.  Journal  des  Sa- 
vants.    Sept.,  Oct.,  1880. 

Anciennes   Lois   de   Dancmark.        Journal   des    Savants. 

Fev.  1881. 


NOTES  AND  REFERENCES.  255 

Dareste,  R.  —  Les  Ancionnes  Lois  de  la  Xorvege.  Journal  des 
Savants.     April,  Mai,  1881. 

Dasent,  G.  "W.  —  The  Stor}-  of  Burnt  Njal,  or  Life  in  Iceland  at 
the  P2nd  of  the  Tenth  Century.     2  vols.     London,  18G1.     8°. 

Delisle,  Leopold.  —  Etudes  sur  la  Condition  de  la  Classe  Agri- 
cole,  et  I'Etat  de  1' Agriculture,  au  Moyen  Age.  Evreux, 
ISol.     8°. 

DiGBY,  K.  E.  —  Introduction  to  the  History  of  the  Law  of  Real 
Property.     Oxford,  1875.     8°. 

EiciiHOKN,  K.  F.  —  Deutsche  Staats-  und  Rechtsgeschichte.  oth 
edition.     4  vols.     Gottingen,  1843.     8°. 

Ellis,  Henrt.  —  General  Introduction  to  Domesda}'  Book.  In 
Domesday  III.  ;  or  2  vols.,  London,  1833.     8°. 

Elton,   Charles.  —  The   Tenures  of   Kent.      Oxford,   London, 

1867.  8°. 

The    Law   of  Commons   and   AYaste   Lands.       London, 

1868.  8°. 

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Holmes,  O.  W.,  Jk.  — The  Common  Law.     Boston,  1881.     8^ . 

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Inama-Sternegg,  K.  T.  v.  —  Untersuchungen  iiber  das  Ilofsystem 
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Die  Entwickelung  der  deutschen  Alpendorfer.     Ein  Wirth- 

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Die  Ausbildung  der  grossen  Grundherrschaften  in  Dcutsch- 

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Die  Quellen  der  deutschen  Wirthschaftsgeschichte.     No- 


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17 


258  EARLY  HISTORY  OF  LAXD-HOLDING. 

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Lewis,  W.  —  Die  Successionsordnung  des  Deutschen  Rechts. 
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Majer,  J.  C. — Teutsche  Erbfolgc  in  Lehen- und  Stammgutern. 
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260  EARLY   HISTORY   OF  LAND-HOLDING. 

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Oxfordshire.     Archaeologia,  vol.  33,  p.  269.     1850. 

Remarks  on  the  Hide  of  Land.      Archaeologia,  vol.  35, 

p.  4  70.     1854. 

On  Iho  Land  of  Ditmarsh,  and  the  Mark  Confederation. 


Archaeologia,  vol.  37,  \).  371.     1857. 


264  EARLY  HISTORY   OF  LAND-HOLDING. 

Williams,  Joshua. — Principles  of  tlie  Law  of  Real  Property. 
Fifth  American,  from  the  twelfth  English  edition.  Phila- 
delphia, 1879.     8°. 

Kights  of  Common  and  otlicr  Prescriptive  Rights.    London, 

1880.     8°. 

Young,  Ekxest.  —  An  Essay  on  Famil}-  Law,  in  Essays  in  Anglo- 
Saxon  Law.     Boston,  187G.     8°. 

ZiMMERLE,  LuDwiG.  —  Dcutsche  Stammgutssystem.  Tubingen, 
1857.     8°. 


INDEX. 


Acres,  6-7,  so,  131,  isi-ise. 

Adoption,  66,  69-73,  222-226. 

Agilofingi,  family  of  the,  32,  185. 

Affatimum,  70-73,  223-225. 

Agri,  (in  Caesar  IV.  1),  210-211 ;  (in  Tacitus  Germ.  20),  4-5,  120,  129- 

133,  231;  (in  the  Annales  IV.  72),  211. 
Agricultural  life,  transition  from  the  pastoral  to  the,  3,  120, 
Agriculture,  introduction  of,  1-3,  126. 
Alfred,  King,  keeps  half  his  forces  in  the  field,  half  at  home,  126;  his 

will,  182-183. 
Alienation,  right  of,  54-56,  GO,  73-75,  209-210,  224,  22G,  228-229. 
Alienations  in  casa,  71,  225-226. 
Allodial  property,  nature  of  it,   248  ;  concentration  of   it,  99-101,  102, 

105,  246;  converted  into  hereditary  tenures,  100,  106,  247;  con- 
verted into  tenures  in  villenage,  247. 
Almend,  138-139,  196  ;  almend  formula,  87,  152,  237. 
Alod,  35,  58,  174-175,  189. 
Ancestor  worship,  a  theory  as  to  its  origin,  189. 
Ancient  houses,  26. 
Appropriation  of  unoccupied  laud,  13-14,  28,  151,  153,  1(58,  171-175,  177- 

178,  193. 
Arable  lots,  occupied  according  to  the  number  of  cultivators,  pi-o  numero 

cuUorum,  4-6,  14,  16,  27,  129-133,  147-148,  151-1.52,  172-173,  231; 

shifted  about,  7-8,  138  ;  held  in  rotation,  10,  83;  distribution  of 

them  in  the  free  colonies,  80-83,  232. 
Authority,  too  much  deference  paid  to  it,  65. 
Auvergne,  custom  of  inheritance  in,  103,  249. 


266  INDEX. 

BaED,  his  letter  to  Abp.  Ecgbirht,  170;  he  refers  to  the  custom  of  primo- 
geniture, 249. 

Benefices,  105-108,  250. 

Beneficiaries,  106-108,  251. 

Bibliography,  111-122,  252-264. 

Blood,  kinship,  as  a  bond  of  union,  66,  90,  195. 

Boc-land,  170-171,  182. 

Borough  English,  104. 

Boundaries,  none  in  the  early  time,  12,  17,  19,  23,  148-149  ;  how  first 
laid  down,  13,  149-150. 

Burgundian  Law,  notable  passages  from  it,  29,  179. 


Caesar,  interpretation  of  his  statements,  2, 12,  15, 17-20,  22,  125-126, 

135,  148-149,  156-157,  210-211. 
Castles,  origin  of,  159. 
Charibert,  taxation  in  the  reign  of,  98. 

Chiefs  and  kings,  in  the  ancient  houses  of  the  nation,  26-27. 
Chilperic,  the  edict  of,  48-49,  206,  213,  214,  220,  221 ;  taxes  in  the  reign 

of,  98. 
Chlothar  I.,  taxes  in  the  time  of,  98,  245. 
Chronology,   disregarded  by  the  advocates  of  a  primitive  communism, 

64-05. 
Churches,  owned  in  shares,  44,  200-201. 
Civic  life  among  the  (iermans,  93,  240. 
Clan  relationships  and  collateral  inheritance,  220-221. 
Clan  system  of  the  Germans,  46,  66,  219-221 ;    dissolution  of  it,  66-78, 

219-231 ;  clan  system  among  tenants,  95,  101. 
Classification  of  collateral  heirs,   53-54,  208-209,  220-221;    among  the 

ancient  Irish,  208. 
Clients,  3.     See  Dependants. 

Collateral  inheritance  and  clan  relationships,  220-221. 
Coloni,  12,  148,  239,  241. 

Colonies,  of  free  proprietors,  78-94,  231-234,  237-241 ;  of  tenants,  de- 
pendants, slaves,  or  serfs,  14-16,  78,  81,  91-94,  124-125,  153-156, 

176,  210-217,  233,  2.34,  238,  246. 
Comarcani,  100-161. 

Common  of  piscary  and  of  fowling,  203  ;  of  estovers,  145. 
Common  enclosures,  84,  234. 
Common  lands  (undivided  property  or  property  held  in  undivided  shares), 

36-40,  177-178,  191,  192-197  ;  rights  of  enjoyment  in,  193. 
Communia,  Communiones,  30,  169,  192-193. 
Communio  proxiraorum,  confmium  colieredum,  178. 


INDEX.  267 

Communism,  none  in  early  times,  10-11,  55-65,  88-89,  212,  217-218;  not 

to  be  inferred  from  the  word  cojiiinuiii',,  191. 
Concentration  of  allodial  property,  99-101,  102,  105,  246. 
Conpascua,  190. 

Conquest,  proprietors  made  tenants  by,  9G,  2-43. 
Copyright,  early  case  of,  200. 

Cord,  funiculus,  used  in  measuring  off  land,  1^32,  136. 
Coulanges,  Fustel  de,  his  judgment  of  the  theory  of  a  primitive  comum- 

nism,  217-218. 
Curtis,  tun,  159. 
Custom,  services  fixed  by,  11-12  ;  rent  fixed  by,  11-12,  133-134. 


DeISEXHOFEN,  terraced  acres  at,  7. 

Dependants,  clients,  3-4,  128-129  ;  politically  free,  economically  unfree, 
4,  128-129 ;  employed  as  cultivators  of  the  soil,  4,  128-129  ;  their 
condition  little  better  than  that  of  slaves,  4,  128-129. 

Development  of  the  simpler  forms  of  society  out  of  the  family,  17G-177. 

Distributions  of  land  by  the  chiefs  or  kings,  169-170,  171. 

Divisions  of  land,  how  made  in  the  early  time,  23  ;  made  by  chiefs  or 
kings,  or  their  agents,  58,  169-170,  171,  181,  212  ;  made  between 
brothers,  29-30,  179-183;  among  kinsmen  generally,  31-35,  49-50, 
1S(J-189,  212  ;  between  fathers  and  sous,  74,  189,  228-229  ;  made 
by  lot,  5,  34-35,  82-84,  188-189,  233. 

Documents,  titles  based  upon,  170-171. 

Domain  lands,  11,  145. 

Dues  and  services,  11-12,  133-134,  146,  246. 


Easement  or  profit  m  alleno  solo,  88,  203. 

Einzelhofe,  1,  127,  175,  231,  238  ;  they  become  Gehoferschaften,  27,  175. 

Enclosures,  common,  84. 

England,  law  of  inheritance  in,  182-183;  indivisibility  of  property,  252; 

fighting  for  land,  166;  consolidated  by  the  conversion  oi  folc-land 

into  hoc-lmul,  171. 
Equality  of  property,  19-20;  found  only  in  the  free  colonies  when  first 

founded,    79-80,  80-89;  prevented  by  the  operation  of  the  law  of 

inheritance  prescribing  division  among  heirs,  88-89. 
Erbe,  it  has  the  same  root  as  the  word  arbeil,  24,  173-175  ;  antedates  the 

Erbegenoxsenschaft,  175. 
Erbgenossenschaft,  Erbschaft,  175,  178-179,  203. 
Eviction  of  tenants  pruliibited,  94. 


268  INDEX. 

FaCULTAS,  use  of  the  word,  72. 

Fagana  family,  32,  185. 

Family,   the  elementary  group    in   sociological  development,    170-177; 

among  the  Germans,  4G,  170-177. 
Farm  buildings,  10,  158-159. 

Farmsteads,  isolated,  1,  10,  78-79,  124-125,  127,  138,  175-177,  238. 
Feudal  system,  origin  of  the,  100-108,  102,  241,  252. 
Fief  au  Kosel,    242,  251. 

Field-grass  system  of  tillage,  Feldgraswirthschq/l,  8. 
Fighting  for  land,  58,  77,    107-108,  212;    among  the  Bavarians,  20-21, 

1G3-104  ;  among  the  Saxons,  21,  165;  among  the  Franks,  21,  165; 

among  the  Alamanni,  21-22,  165-106  ;  among  the  Lombards,  21, 

76-77,  166  ;  in  England,  160. 
Fishing,  45,  85,  202-203. 
Folc-land,  170-171. 

Forest  land,  10,  28,  36-39,  61,  85,  144-145,  152,  190-195,  235-237  ;  en- 
joyment of  it  unregulated,  10,  36,  85,  144-145  ;  enjoyment  stinted, 

37  ;  severalties  of,  86,  152,  236-237. 
Freedmen,  128. 
Freemen,  as  free-lords,  considered  from  the  economic  point  of  view,  16- 

17  ;  how  they  passed  their  time,  2-3  ;  colonies  of,  78-94. 
Free  tenants,  100,  106,  129,  247-248. 
Free  tenures,  origin  of,  100,  247-248. 

Frisii,  private  property  in  land  among  them  in  Tacitus's  time,  211. 
Funiculus,  132-133,  136. 
Furlongs,  134-135. 


Gavelkind  in  Kent,  i66, 242. 

Gefolgschaften,  251. 

(Jehoferschaft,  27,  94,  175,  178-179,  238-239,  240-241. 

Genealogical  relationships,  knowledge  of,  189. 

Genealogies,  from  the  Anglo-Saxon  Chronicle,  206. 

Gesettes-land,  145. 

Gewannen,  134-135. 

Gewere  (gwerra  or  werra,  guerre  or  war),  22,  107-168. 

Gewerida,  107. 

Grass  land,  2,  9,  28,  36,  83-86,  141,  152;  enjoyment  of  it  stinted  and  un- 
stinted, 9,  30-37,  84  ;  divided  into  lots,  9,  84,  80,  142,  152  ;  the 
rotation  system  applied  to  it,  9,  143. 

Greeks,  civic  life  of  the,  93,  240. 

Guerra,  guerre,  22,  107. 


INDEX.  269 

HaUSGESETZE,  104,  249,  250. 

Heii's,  how  described  in  the  early  records,  31-35,  184-18G;  they  could 
always  call  for  a  division  of  the  inheritance,  32,  CO;  their  consent 
required  before  land  could  be  alienated,  54-56,  74,  209-210,  228. 

Ilerdsmeu,  2,  125. 

Herold  text  of  Lex  Salica  De  alodis,  33,  187-188. 

Hide  of  land,  hida,  4,  130-131,  139. 

Hindu  village  community,  155,  203-205. 

Ilochacker,  in  Bavaria,  7,  138. 

Holding  in  common,  to  be  distinguished  from  communistic  holding,  39, 
57,  191,  192,  214. 

House  communities,  of  proprietor.^,  1G1-1G2,  177,  199-200,  231;  of  ten- 
ants, 94-95,  101,  242. 

Houses  owned  in  shares,  44,  199-200. 

Hubae,  4,  13,  25,  29,  93,  130,  152,  160,  178,  195,  203,  237-238;  indomi- 
nicatae,  11,  145. 

Hubengemeinden,  178-179,  203. 

Hunting,  2,  45,  85,  202. 

Immunity,  grants  of,  98-100,  245-246;  purchased,  99. 

Inama-Sternegg,  K.  T.  v.,  value  of  his  writings,  246-247. 

Independence,  of  the  house-father  in  the  early  time,  16-17. 

Indivisibility  of  inheritances,  102-108,  162,  248-252;  leads  to  the  adop- 
tion of  the  rule  of  primogeniture,  102-108,  248-252. 

-ing,  patronymical  syllable,  46—48,  206. 

Inheritance,  origin  of,  24,  173-175;  laws  of,  30-33,  48-50,  52-54,  59,  182- 
183,  213,  226,  250;  by  primogeniture,  103-106,  l.s3,  207-209,  249, 
250-251 ;  by  ultimogeniture,  or  Borough  English,  104. 

Inheritances,  earliest  forms  of,  24-25,  27-28,  154-155;  multiplied  at  first, 
not  divided,  2.5-26,  29 ;  how  they  came  to  be  divided,  29-35,  48-56, 
58-60,  68-69,  77-78,  88-89,  95,  102,  161-162,  179-189,  195-196, 
206-209,  212-215,  219-222,  237-238,  242,  2.32;  how  they  remained 
undivided,  25,  31,  33,  36,  38,  46,  52,  59,  66,  78,  213,  214;  not  to 
be  divided,  102-108,  162,  248-252;  in  the  Hindu  village  commu- 
nities, 203-204;  women  allowed  to  take  them,  66-69,  221-222. 

In-land,  145. 

Intermixed  holdings,  5-6,  131-137. 

Intermarriages  between  clans,  67,  219,  222. 

Isolated  farmsteads  and  domains,  1,  16,  78-79,  121-125.  127,  175-177,  238. 

Israel,  children  of,  inheritances  divided  by  lot  among  them,  188. 

JURNALTS,  the  Latin  word  for  acre,  6,  135. 


270  INDEX. 

Kings,   they  distribute  the  land  among  the  people,   1G9-170;  in  the 

ancient  houses,  26-27. 
Kinship,  as  a  bond  of  union,  OG,  90,  195,  203. 


LaNDLORDSIIIP  and  the  village  community,  215-217.  See  Proprietor- 
ship. 

Land-tax  in  Jndia,  204-205. 

Lintins,  pecuniosi  et  locupletes,  1;  prescription  among  them,  76;  civic  life 
among  them,  93,  240. 

Lex  Frisionum,  text  of  the,  187-188. 

Lex  Salica,  De  affatomie,  70-73,  223-224,  226,  227;  De  alodis,  33,  68, 
182,  187,  188;  De  chrenecruda,  220,  221,  225;  De  eum  qui  se  de 
parentilla  tollere  vult,  60,  214;  De  migrantibus,  50-52,  75-76,  230. 

Literature  of  our  Subject,  252-264. 

Lot  meadows,  9,  84,  142. 


JNlANORIAL  system,  177;  developed  during  the  period  of  migrations, 
156,  21.3-216. 

Manors  and  village  communities,  215-217. 

Mansi,  4,  12,  13,  29,  38,  92,  93,  99,  130,  136,  145,  147,  151-152,  191,  194, 
237-238;  indominicati,  13. 

Markgenossenschaft,  160;  ohne  Feldgemeinschaft,  246. 

Markland,  i.  e.  border  land,  13,  16,  153,  159-161. 

Marks  used  in  casting  lots,  142-143,  234. 

Marriages  between  clans,  67,  219. 

Meadows.     See  Grass  land. 

Measurement  of  land,  130-133,  136. 

Migratory  life,  not  inconsistent  with  the  development  of  a  manorial  sys- 
tem, 1.56,  215-216. 

Mills,  owned  in  shares,  44,  200;  run  by  water,  200. 

Mir,  the  Russian,  243. 

Missus,  of  the  chipf  or  king,  sent  to  divide  property,  58,  181. 

Money,  stock  used  instead  of,  122. 

Morgen,  the  German  word  for  acr-e,  6,  135. 

Mortgages  in  the  time  of  Lex  Salica,  225. 


Names,  of  isolated  farmsteads  and  tenant  colonies,  15-16,  157-158;  of 

clan  villages,  46-48. 
Neighborhood,  as  a  bond  of  union,  90. 
Numen,  use  of  the  word,  72,  226. 


IXDEX.  271 


Open  field  system,  137,  1 13. 

Ownership  of  land,  distributive  or  collective  ?  38-39,  49-52,  57-58,  60. 


Pastoral  ufe,  i. 

Pasture  land,  1,  10,  28,  36,  84-85,  144,  100-191,  194;  enjoyment  stinted 
and  unstinted,  10,  36-37,  85,  144;  severalties  of,  held  in  common, 
86,  235. 

Patres  of  the  Latin  town,  93. 

Patronymical  names  of  places,  46-48. 

Pecunia,  72,  226. 

Per  capita  divisions,  33-35. 

Personal  names  in  local  names,  15-16,  157-158. 

Per  stirpes  divisions,  33-35,  188. 

Pictatium,  170. 

Ploughing,  co-operative,  8-9,  140-141. 

Plough-lands,  8-9,  139-141. 

Ploughs,  8-9,  80,  139-141. 

Poll-taxes  in  Russia,  213. 

Population  of  the  clan  villages  and  tenant  colonies,  91. 

Possession  in  early  times,  22-23,  82,  169. 

Possessions,  landed,  how  described  in  the  early  time,  22,  24. 

Predominance  of  the  clan  villages  over  the  colonies  sent  out  from  them,  91. 

Pre-emption,  the  right  of,  enjoyed  by  kinsmen  and  neighbors,  75,  230. 

Prescription,  66-67,  75-77,  166,  230. 

Primitive  communism,  theory  of  a,  40-41,  5.5-65,  191,  212,  217-218. 

Primitive  property,  possession  maintained  when  necessary  by  force,  82, 

Primogeniture,  introduction  of,  103-108,  183,  249,  250-251. 

Private  property  in  land,  found  everywhere  after  the  migrations,  57; 
may  have  existed  in  pre-historic  times,  211;  false  theory  of  its  ori- 
gin, 217. 

Profits  a  prendre,  88,  203. 

Property  consisting  of  villages  of  serfs,  village  communities,  154-155. 

Proprietors  in  the  German  village,  231. 

Proprietorship,  landlordship,  to  be  distinguished  from  tenancy,  63-64,  9.5- 
96;  how  it  was  in  many  cases  converted  into  tenancy,  93,  06-07, 
100,  213;  concentration  of  it,  90-101,  102,  105,  240;  acquired  by 
corporations  and  communities,  40,  88,  195. 


ReDISTRTBUTTOXS  of  land,  82,  233. 
Rent,  early  history  of,  133-1:M,  243. 
Rents,  dues,  and  services,  11-12,  146. 


272  INDEX. 

Representation,  principle  of,  188,  226. 

Revenue  system  of  the  Hindu  kings,  205. 

Rights  in  land,  not  acquired  from  communities,  but  from  individuals,  87- 

88;  rights  in  common  lands,  193;  rights  of  common,  88,  145,  195, 

197,  202-203. 
Roads  and  ways,  property  in  them,  41-42,  70,  107-198. 
Rod,  vlrga,  used  in  measuring  land,  133,  13G. 
Rotation  system,  9,  10,  83,  143,  233. 

Salic  law.     See  Lex  Salica. 

Services,  agricultural,  11-12,  120,  146. 

Schwyz,  commonwealth  of,  216. 

Serfs,  the  class  of,  4. 

Severalties,  how  held  in  common,  85-86,  235. 

Shareholders,  parceners,  186,  231. 

Silva  communis,  30-39,  61,  190. 

Slavery,  the  transition  from  the  pastoral  to  the  agricultural  life  affected 

by  means  of,  3,  126. 
Slaves  as  cultivators  of  the  soil,  2-3,  79,  120-127,  17G;  owned  in  shares, 

45,  201 ;  housed  slaves  (servi  cassali) ,  79;  household  slaves,  92;  slaves 

as  tenants,  79,  94. 
Socage  tenures,  247. 
Sondereigenthum,  246. 
Sors,  patrimonium  significat,  35. 
Sortes,  35,  133,  189-190. 
Sources  of  information  list  of,  111-122. 
Spatia  caniporum  (in  Germania  26),  5,  134-135. 
State  of  the  early  Germans,  91,  248. 
Stock,  flocks  and  herds,  1-3,  13,23,  25,  20,  27,  29,  122,  123,  125,  138, 

141,  157,  161,  176,' 211. 
Stretford,  customs  of,  249. 
Strips  of  land,  80. 

Tacitus  Germania.  Interpretation  of  Cap.  XVI.  15,  124-125,  155, 
231,  239;  of  Cap.  XXVL  4-G,  7,  IG,  27,  129-133,  131-135,  147-148, 
151,  152,  172-173. 

Tagwerch,  135,  141. 

Taxes,  institution  of,  97-98;  in  India,  204-205;  in  Russia,  243. 

Tenancy,  to  be  distinguished  from  proprietorship,  63-64,  95-96;  in  perpe- 
tuity, 94,  244;  hereditary  by  custom,  94. 

Tenant  colonies,  14-16,  78,  81,  91-94,  124-125,  143,  153-156,  176,  215- 
217,  233,  234,  238,  246. 


INDEX.  273 

Tenants,  classes  of,  106 ;  how  described,  12,  147-1-lS. 

Tencteri,  rule  of  inheritance  among  them,  102-103,  1G2,  249. 

Tenures  in  perpetuity,  origin  of,  94,  244;  free  tenures  (socage  tenures) 

and  tenures  in  villeuage,  247. 
Terraces,  7. 
Teutonic  village,  231. 
Three-field  system,  143. 
Titles,  derived  from  original  grants,  77;  based  upon  the  possession  of 

documents,  170-171. 
Tothill-fields,  battle  for  land  at,  IGG. 
Township  system,  none  in  our  Southern  States,  127. 
Tribal  systems,  German  and  Irish,  170. 
Tribes,  genealogical  and  topical,  90-91. 

Tribes  of  the  children  of  Israel,  distributions  of  land  among  them,  188. 
Tribute  and  rent,  243. 
Trinoda  necessitas,  246. 
Tun,  Curtis,  159. 


Ultimogeniture,  Borough  English,  io4. 

Undivided  land,  rights  of  property  in  it,  how  defined,  28-29,  86-39,  190- 
197,  213-214  ;  undivided  land  as  a  bond  of  union,  195-19G  ;  undi- 
vided land  not  necessarily  common  property,  214.    See  Holding. 

Universitas,  40,  88. 

Unterwalden,  commonwealth  of,  21 G. 

Unoccupied  land  regarded  as  undivided  property,  13-14. 

Uri,  commonwealth  of,  216. 


VaVASSORIAE,  95,  242,  250,  251. 

Vestitio,  167. 

Vici  locati  in  Tacitus  Germania,  124-125,  155,  239. 

Vicini,  the  right  of  the,  48-50,  60,  214-215  ;  origin  of  the  right,  52-53. 

Vicus  vel  genealogia,  4G,  205. 

Village  communities,  origin  of,  177,  215-217  ;  in  connection  with  land- 
lordship  and  the  manorial  system,  215-217  ;  in  India,  155,  203- 
205  ;  in  Russia,  155,  243. 

Village  community  of  the  Germans,  231.     See  Villages  of  Proprietors. 

Villages  of  proprietors,  origin  of  them,  27,  -52,  231  ;  inheritances  in  them, 
27-28  ;  description  of  them,  46. 

Villicus,  propositus,  actor,  major,  14,  155-15G. 

Visigoths,  divisions  of  land  among  them,  49-50,  212. 

Vorwerc,  allodium,  171-175. 

18 


274  INDEX. 

Water,  rights  of  property  in,  42-43,  198-199;  mills  run  by  it,  200. 

Wells,  ownership  of,  43. 

Werra,  war,  22,  1C7. 

Women,  admitted  to  rights  of  inheritance  in  land,  GG-G9,  221-222. 

Wood,  right  to  cut  it,  10,  141-145. 


ZELOniEIIAD,  the  daughters  of,  07,  188. 


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